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J'^^^^. 


Digitized  by  the  Internet  Archive 

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http://www.archive.org/details/digestofcasesrepOOnortiala 


DIGEST 

OF  THE  CASES  REPORTED  IN 

ANNOTATED  CASES 

(American  and  English) 

1918  C  TO  1918  E 


With  Table  of  Cases  Reported 
and  Index  of  the  Annotations 


EDWARD  THOMPSON  COMPANY      BANCROFT-WHITNEY  COMPANY 

NORTHPORT,  L.  I.,  N.  Y.  SAN  FRANCISCO 

1919  1919 


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CoPYRiGrfr,  1919  ^  * 

BY 

EDWARD  THOMPSON  COMPANY 

AND 

BANCROFT-WHITNEY  COMPANY 


^nor        oA  aHi  io 


Table  of  Cases  Reported 


IN 


ANN.  CAS. 


VOLUMES  1918C-1918E 


Abbott,  People  ex  rel.  Kroner  v. 

—274  111.  380   1918D     450 

Abrams,    Shannon    v. — 98    Kan. 

26     1918E     502 

Acme  Mfg.   Co.,  Krachanake  v. 

—175  N.  Car.  435 1918E     340 

Adams  Express  Co.,  Reynolds  v. 

—172  N.  Car.  487  ' 1918C  1071 

Aetna   Explosives    Co.,   McClin- 

tock,  etc.  Co.  v.— 260  Pa.  St. 

191    1918E  1078 

Aetna  Life  Ins.  Co.  v.  Bradford 

—45  Okla.  70 1918C     373 

Agri  Mfg.  Co.  V.  Atlantic  Fertili- 
zer Co.— 129  Md.  42 1918D     398 

Ahlgren  v.  Walsh— 173  Cal.  27  1918E  751 
Ainsworth,   White   v. — 62    Colo. 

613    1918E     179 

Aktiengesellschaft,     etc,     Hugh 

Stevenson  &  Sons  v.— [1918] 

2  A.  C.  239    1918D     575 

Aktieselskabet  Korn-Og,  etc.  v. 

Rederiaktiebolaget,     etc. — 250 

Fed.  935   1918E     491 

Albright  v.  Albright— 21  N.  Mex. 

606     1918E     542 

Alexander,  Holmes  v. — 52  Okla. 

122     1918D  1134 

American  Credit  Indemnity  Co., 

Cauman  v.— 229  Mass.  278  . .  1918E  841 
American  Graphophone  Co.,  Bos- 
ton Store  v.— 246  U.  S.  8 1918C     447 

American  Tobacco  Co.,  People's 

Tobacco  Co.  v.— 246  U.  S.  79  1918C  537 
American  Woodenware  Mfg.  Co. 

v.  Schorling— 96  Ohio  St,  305  1918D  318 
Angelo,  State  v.— 109  Miss.  624  1918D  237 
Ann  Arbor,  Schenk  v, — 196  Mich. 

75     1918E     267 

Arlington,  Saunders  v. — 147  Ga. 

581    1918D     907 

Armstrong  v.  Banking  Trust  Co. 

—96  Kan.  722 1918D     972 

Armstrong  v.  Modern  Woodmen 

—93  Wash.  352 1918E     263 

Armstrong  v.  Morrow — 166  Wis. 

1    1918E  1156 

Arras  Brothers,  Gibbs  v.— 222  N. 

Y.  332 1918D  1>41 


Atchison,  etc.  R.  Co,,  Jacobs  v. 

—97  Kan.  247  1918D     384 

Atchison,  etc.  R.  Co.  v.  United 

States— 244  U.  S.  336   1918C     794 

Atlantic     Fertilizer     Co,,     Agri 

Mfg.  Co.  v.— 129  Md.  42 1918D     39ft 

Avery  v.  Thompson— 117  Me.  120  1918E  1122 

Baca  V.  Unknown  Heirs — 20  N.  * 

Mex.  1   1918C     612 

Bache  v.  Central  Coal,  etc.  Co. 

—127  Ark,  397  1918E     198 

Bailey,  Gretna  v.— 141  La,   625  1918E     566 
Bailey,  Modern  Brotherhood,  etc, 

V,— 50  Okla.  54    1918E     744 

Baldwin,    Corbin    v. — 92    Conn. 

99     1918E     932 

Balfe,   Rose  v.— 223   N.   Y.   481  1918D     238 
Bankers'   Trust    Co.,   Martin   v. 

— 18  Ariz.  55 1918E  1240 

Banking  Trust  Co.,  Armstrong  t. 

—96  Kan.  722 1918D     972 

Bank  of   Commerce,  etc.  Co.  v. 

Burke— 135  Tenn.  19 1918C     439 

Bank  of  Grand  Prairie,  Breitzke 

v.— 124  Ark.  495 1918D     792 

Bannwart,     Creditors     National 

Clearing  House  v. — 227  Mass. 

579    1918C     130 

Barber  v.  Detroit,  etc,  R.  Co. — 

197  Mich.  643  1918E  1109 

Baron,  Morris  v. — [1918]  A.  C. 

1  (Eng.)   1918C  1197 

iBateman,    Cleveland    v. — 21    N.  , 

Mex,  675    1918E  1011 

Bateman,  Koswell  v. — 20  N.  Mex. 

77    1918D     426 

Baughman  v.  Baughman — 283  111. 

55    1918E     895 

Bawlf    Grain    Co.    v.    Ross — 55 

Can.  Sup.  Ct.  232 1918E     319| 

Baxter  v.  Woodward — 191  Mich, 

379    1918C     946 

Beard,  Jr.  v.  Beard— 173  Ky,  131  1918C     832 
Becker     v,     London     Assurance 

Corp.— [1918]  A.  C.  101   1918C     367 

Bennett,  Emery  v.- 97  Kan,  490  1918D     437 
Bennetts,  Butte  v.— 51  Mont.  27  1918C  lOig^ 


ANN.  CAS.  DIGEST   (1918C-1918E), 


Bennett  v.  Stockwell— 197  Mich. 

50    1918E  1193 

Bergdoll,     Philadelphia     v.— 252 

Pa.  545  1918C  1141 

Bergman  v.  Evans— 92  Wash.  158  1918C  848 
Berry  v.  Marion  County  Lumber 

Co.— 108  S.  Car.  108   1918E     877 

Berry,  Modern  Woodmen  v.— 100 

Xeb.    820    1918D     302 

Betti.   Silverman    v. — 222   Mass. 

142    1918C       90 

Betts  V.  Massachusetts  Bonding, 

etc.  Co.— 90  N.  J.  Law  632   . .    1918E     520 
Bibb,   Merrimae    Mfg.    Co.    v.— 

124  Ark.  189 1918C     951 

Bishop  Bandal  Hospital  v.  Hart- 
ley—24  Wyo.  408    1918E  1172 

Blackorby  v.   Friend,   Crosby  & 

Co.— 134  Minn.  1   1918E  1199 

Bla(Jik  V.  Woodruff-J93  Ala.  327  1918C  969 
Blair,  Hennessy  v.— 107  Tex.  39  1918C  474 
Blair  Township,  Traverse  City  v. 

—100   Mich.   313 1918E       81 

Blake,  Woodward  v.— 38  N.  Dak. 

38     1918E     552 

Blatti,  Patterson  v.— 133  Minn. 

23     1918D       63 

Blume  V.  Chieagof,  etc.  R.  Co. — 

133  Minn.  348  1918D     297 

Board  of  County  Com'rs  v.  Bruce 

—51  Okla.  541    1918E  1060 

Board  of  County  Com'rs,  Camp- 
bell v.— 97  Kan.  68   1918D     533 

Board  of  Trade  v.  Unittd  States 

—246  U.  S.  231 1918D  1207 

Bodwell  V.  Webster— 98  Neb.  664  1918C  624 
Boiling,  Western  Union  Tel.  Co. 

v.— 120  Ya.  413 1918C  1036 

Bolton    V.    Walker— 197     Mich. 

699     1918E  1007 

Boney  v.  Dublin— 145  Ga.  339  . ..  1918E  176 
Bonner   Oil    Co.   v.  Gaines — 108 

Tex,  232 1918C     574 

Bonynge  v.  Frank— 89  N.  J.  L. 

239    1918D     211 

Bordwell  v.  Williams— 173   Cal, 

283     1918E     358 

Bossert  v.  Dhuy— 221  N.  Y.  342  1918D  661 
Boston   Elevated  R.  Co.,  Walsh 

v.— 222  Mass.  275 1918C     443 

Boston,  etc.  R.  R.  v.  Piper— 246 

U.    S.   439    1918E     469 

Boston,  etc.  R.  R.,  Shaughnessy 

v.— 222  Mass.  334 1918C     376^ 

Boston  Safe  Deposit,  etc.  Co.  v. 

Collier— 222  Mass.  390    1918C     962 

Boston    Safe    Deposit,   etc.    Co., 

Eaton  v.— 240  U.  S.  427  . . 1918D       90 

Boston  Store  v.  American  Graph- 

ophone  Co.— 246  U.  S.  8   1918C     447 

Boutlier    v.    Maiden — 226    Mass. 

470     1918C     910 

Boutlier  v.  Maiden  Electric  Co. 

—226  Mass.  479   1918C     910 

Boutlier   v.    Suburban   Gas,   etc. 

Co.— 226  Mass.  479   1918C     910 

Box  Butte  County.  Chicago,  etc. 

R.  Co.  v.— 99  Neb.  208 1918D  1037 

Boyer,  Webster  v.— 81  Ore.  485  1918D  988 
Bradford,   Aetna    Life    Ins.    Co. 

v.— 45  Okla.  70    1918C     373 


Bradley,  Gulf,  etc.   K.    Co.   v.— 

110  Miss.  152   1918D     554 

Brady,  People  v.— 272  111.  401  . .  1918C  540 
Brandt  v.  Fresno  Hotel  Co. — 174 

Cal.    789    1918D     346 

Breitzke     v.     Bank     of     Grand 

Prairie— 124   Ark.  495    1918D     792 

Briuson,  Cohn  v.— 112  Miss.  348  1918E  134 
Brooks    v.     Campbell — 97    Kan. 

208     1918D  1105 

Brown,  Childers  v.— 81  Ore.  1  1918D  170 
Brown,    Johnson    v. — 138    Tenn. 

395    1918C     672 

Brown,  People  v.— 273  111.  169  1918D  772 
Browne,    Putnam    v. — 162    Wis. 

524     1918C  1085 

Browne,  Smith  v.— 222  N.  Y.  222  1918D  834 
Bruce,  Board  of  Countj'  Com'rs 

v.— 51  Okla.   541    1918E  1060 

Buchanan  v.  Orange— 118  Ya.  511  1918D  391 
Buck  v.  Rex — 55  Can.  Sup.  Ct. 

133 : 1918D  1023 

Buhrn.son  v.  Stoner— 275  111.  41  1918D  1054 
Bulletin     Co.     v.     Sheppard — 55 

Can.  Sup.  Ct.  454   1918E     151 

Bumpas,   Florence   Hotel   Co.   v. 

—194  Ala.  69   1918E     252 

Bunch,  Eminent  Household  v. — 

115  Miss.  512    ■ 1918C     110 

Burke,  Bank  of  Commerce,  etc. 

Co.    v.— 135   Tenn.    19    1918C     439 

Burke,    United    States    Fidelity, 

etc.  Co.  v.— 238  Fed.  881 1918C       93 

Burnett    v.     Greenville — 106     S. 

Car.    255    1918C     363 

Burns,    Houston    v. — [1918]    A. 

C.   337    1918C     434 

Bush  v.  Stephens— 131  Ark.  133  1918E  259 
Buskirk-Rutledge    Lumber    Co., 

Cross  v.— 139  Tenn.  79   1918D     983 

Butler    v.    Butler— 169    N.    Car. 

584     1918E     638 

Butler  v.   Eminent  Household — 

116  Miss.  85 1918D  1137 

Butler  v.  Kansas  City — 97  Kan. 

239     1918D     801 

Butte     V.     Bennetts — 51     Mont. 

27     1918C  1019 

Byrd,    Delancey    v. — 110    Miss. 

598    1918D     668 

Cade,  Power  v.— 112  Miss.  88  . .  1918E  1146 
Caddo  River  Lumber  Co.,   Case 

v.— 126  Ark.  240   1918C       80 

Cain  v.  Osier— 168  Iowa  59 1918C   1126" 

Calgary,  Grand  Trunk  Pacific  R. 

Co.  y.— 55   Can.  Sup.   Ct.   103  1918D     724 
Campbell    v.    Board    of    County 

Com'rs— 97  Kan.  68 1918D     533 

Campbell,    Brooks    v. — 97    Kan. 

208  1918D  1105 

Campbell,  Ritzman  v. — 93   Ohio 

St.  246   1918D     248 

Campbell  v.  Sigmon — 170  N.  Car. 

348     1918C       40 

Card,  York  Shore  Water  Co.  v. 

—116   Me.   483    1918D     945 

Carlton,  Pullen  v.— [1918]  2  K. 

B.  207 1918D  1201 

Carolina   Distributing  Co.,  Har- 
ris v.— 172  N.  Car.  14 1918C     329 


TABLE  OF  CASES  EEPORTED. 


Carroll,    Strasner    v. — 125    Ark. 

34     1918E     306 

Carr  v.  Washington,  etc.  Rv. — -14 

App.  Cas.  (D.  C.)  533  .  .  .' 1918D     818 

Carter  v.    Papineau — 222  Mass. 

464   1918C     620 

Carter,    United    States    v. — 250 

Fed.  299   <. 1918E       36 

Casdagli  V.  Casdagli— [1918]  P. 

89 .   1918E     669 

Case  V.  Caddo  River  Lumber  Co. 

—126  Ark.  240   1918C       80 

Cassady  v.  Mote— 184  Ind.  173  1918E  68 
Cassidy,    Scovill   Mfg.    Co.   v. — 

275  111.  462    1918E     602 

Cauman  v.  American  Credit  In- 
demnity Co.— 229'  Mass.  278  1918E  841 
Cavell.  Memphis  St.  R.  Co.  v.— 

135  Tenn.  462  1918C       42 

Central    Coal,    etc.    Co.,    Bache 

v.— 127  Ark.  397    1918E     198 

Central  Pacific  R.  Co.  v.  Lane — 

46  App.  Cas.  (D.  C.)  374  ....  1918C  1002 
Ceres  Investment   Co.,  Jones  v. 

—60    Colo.    562    1918C     429 

Chafor  v.  Long  Beach  —174  Cal. 

478     1918D     100 

Chamberlain,    Townsend    v. — 81 

Ore.    163     1918C     330 

Chambers  v.  Minneapolis,  etc.  K. 

Co.— 37  X.  Dak.  377    1918C     954 

Champe,  Weadock  v. — 193  Mich. 

553  1918C  874 

Chancey  v.  Norfolk,  etc.  R.  Co. — 

174  X.  Car.  351 1918E  580 

Chapman  v.  Fargo— 223  X.  Y. 

32  1918E  1054 

Chaplin   v.  Griffin— 252  Pa.   St. 

271    1918C     787 

Charles    R.    Davidson    &    Co.    v. 

M'Robb— [1918]  2  A.  C.  304  . .  1918D  670 
Chicago,   etc.   R.    Co.,   Blume   v. 

—133   Minn.   348    1918D     297 

Chicago,  etc.  R.  Co.  v.  Box  Butte 

County— 99  Xeb.  208 1918D  1037 

Chicago,  etc.  R.  Co.  v.  Greenberg 

—139  Minn.  428   1918E     456 

Chicago,  etc.  R.  Co.,  Ochs  v. — 135 

Minn.  323 1918E     337 

Chicago,  etc.  R.  Co.  v.  Redding — 

124   Ark.   368    1918D     183 

Childers  v.  Brown— 81  Ore.  1  1918D  170 
Chilvers,  Crook  v.— 99  Xeb.  684  1918E  90 
Chreste  v.    Commonwealth — 171 

Ky.   77    1918E     122 

Cincinnati,    etc.    R.    Co.,    Davis' 

Adni'r  v.— 172  Ky.  55 1918E     414 

Citizens  Tel.  Co.,  Harbaugh  v. — 

190  Mich.  421   1918E     117 

Citv  of  Xew  York  Ins.  Co.,  Wal- 
ler v.— 84  Ore.  284   1918C     139 

Clark   V.   Detroit,   etc,   R.   Co."— 

197  Mich.  489 1918E  1068 

Cleveland,    Bateman    v. — 21    X. 

Mex.   675    1918E  1011 

Cleveland,     etc.     Traction     Co., 

Parkside    Cemetery   Assoc,   v. 

—93  Ohio  St.  161 1918C  1051 

Cleveland  v.  Watertown — 222  X. 

Y.  159 1918E     574 


Clodfelter's  Will,  In  re— 171  X. 

Car.    528    1918E     281 

Cohn  V.  Brinson— 112  Miss.  348  1918E  134 
Cole,  Matter  of— 219  X.  Y.  435  1918E  807 
Collier,  Boston  Safe  Deposit,  etc. 

Co.   v.— 222  Mass.   390    1918C     962 

Collins,  Linn  v.— 77  W.  Va.  592  1918C  86 
Collins   V.    Skillings — 224   Mass. 

275     1918D     424 

Collison,    Stephens    v. — 274    111. 

389     1918D     559 

Columbia  Life,  etc.   Co.,  French 

v.— 80  Ore.  412    1918D     484 

Commonwealth,  Chregte  v. — 171 

K3^  77    1918E     122 

Commonwealth  v.  John  T.  Con- 
nor Co.— 222  Mass.  299   1918C     337 

Connecticut     Co.,     Dwy     v. — 89 

Conn.   74    1918D     270 

Connecticut  Fire  Ins.  Co.  v.  W. 

H.   Roberts   Lumber   Co. — 119 

Va.   479    1918E  1045 

Cooke,  Sheffield  v.— 39  R.  L  217  1918E  961 
Cook,  Kelso  v.— 184  Ind.  173  ...  1918E  68 
Coombs   V.    Southern   Wisconsin 

R.  Co.— 162  Wis.  Ill 1918C     532 

Corbin  v,  Baldwin— 92  Conn.  99  1918E  932 
Corless,     Porizky     v. — 46     Utah 

495 1918D     198 

Corless,  Saville  v.— 46  Utah  495  1918D  198 
Cottle,  Raleigh  County  Court  v. 

—79  W.  Va.  661  1918D     510 

Creditors       National       Clearing 

House  V.  Bannwart — 227  Mass. 

579    1918C     130 

Crews,    St.    Louis,    etc.    R.    Co. 

v.— 51  Okla.  144  1918C     823 

Crites     v.     Williamette     Valley 

Lumber    Co.— 87    Ore.    10    .  .  .    1918D  1050 
Crook  v.   Chilvers— 99  Xeb.  684  1918E       90 
Crooker,  Savior  v.— 97  Kan.  624  1918D     473 
Cross  V.  Buskirk-Rutledge  Lum- 
ber Co.- 139  Tenn.  79 1918D     983 

Crouse  v.  Wheeler— 62  Colo.  51  1918E  1074 
Crowe,  State  v.— 130  Ark.  272  1918D  460 
Cully,  Palmer  v.— 52  Okla.  454  1918E  375 
Currv,   Hutton   v.— 93   Ohio   St. 

339    1918C     770 

Curtis,  Manson  v.— 223  N.  Y.  313  1918E     247 

Dagenhart,  Hammer  v. — 247   U. 

S.  251   1918E     724 

Dahl,  Weston  v.— 162  Wis.  32  . .  1918C  922 
Daniels,  Park  City  v. — 46  Utah 

554   1918E     107 

Daughtrv,    Robinson   v. — 171   X. 

Car.    200    1918E  1186 

Davis'  Adm'r  v.   Cincinnati,  etc. 

R.  Co.— 172  Ky.  55   1918E     414 

Davis  V.  Dunn— 90  Vt.  253 1918D     994 

Davis  V.  Seavey— 95  Wash.  57  . .    1918D     314 

Davis  v.  State— 30  Ida.  137   1918D     911 

Davis,    State    v.— 171    N.    Car. 

809     1918E  1168 

Davis,  State  v.— 39  R.  L  276  1918C  563 
Davton  v.  South  Covington,  etc. 

St.  R.  Co.— 177  Ky.  202 1918E     229 

De  Cicco  V.  Schweizer — 221  X.  Y. 

431   1918C     816 

Delancey  v.  Byrd— 110  Miss.  598  1918D     668 


t 


ANN.  CAS.  DIGEST  (1918C-1918E). 


Dea     Moines,     Teeters     v. — 173 

Iowa  473   

Detroit,   etc.  R.    Co.,  Barber  v. 

—197  Mich.  643  

Detroit,  etc.  R.  Co.   Clark  v.— 

197  Mich.  489 

Dhuy,  Bossert  v.— 221  N.  Y.  342 
Diamond    Ice,    etc.    Co.,    Perry 

Bros,  v.— 92  Wash.  105   

Diclcinson  v.  Hanley — 193  Mich. 

585    

Dickinson,  National  Union  Fire 

Ins.  Co.  v.— 92  Wash.  230  .. 
Dickinson  v.  Stiles— 246- U.  S.  631 
Dick,  Kerr  &  Co.,  Metropolitan 

Water    Board    v.— [1918]    A. 

C.   119    

Dils,  Parsons  v.— 172  Ky.  774  . . 
District  Board,  State  ex  rel.  Con- 
way v.— 162  Wis.  482 

District  of  Columbia,  Hotchkiss 

v.— 44  App.  Cas.  (D.  C.)  73  . . 
Dixon,  Wren  v.— 40  Nev.  170  . . 
Dodge,  New  York  Liife  Ins.  Co. 

v.— 246   U.   S.    357    

Dodge  V.  North  End  Improve- 
ment Assoc. — 189  Mich.  16  .  . 
Dodgson,  Powers  v. — 194   Mich. 

133    

Donaldson,    Great    Northern    R. 

Co.  v.— 246  U.  S.  121    

Douglas  V.  Jenkins — 146  Ga.  341 
Drabelle,  Pitman  v.— 267  Mo.  78 
Dublin,  Boney  v.— 145  Ga.  339  . , 
Dunaway,  Ralston  v. — 123  Ark. 

12    

Dunn,  Davis  v.— 90  Vt.  253 

Dunn,  State  ex  reL  Corporation 

Commission    v. — 174   N.    Car. 

679    

Dwight,  Smith  v.— 80  Ore.  1  . . 
Dworak  v.  Supreme  Lodge — 101 

Neb.  297    

Dwy     V.     Connecticut     Co. — 89 

Conn.  74    

Dynamit  Actien-Gesellschaft  etc. 

V.    Rio    Tinto    Co.— [1918]    2 

A.  C.  260  

Easterling,    Pearson    v. — 107    S. 

Car.    265    

Eaton  V,   Boston   Safe   Deposit, 

etc.  Co.— 240  U.  S.  427   

Eisman,  Hanover  Fire  Ins.  Co.  v. 

—45  Okla.  639   

Eklund,  O'Neill-Adams  Co.  v.— 

89  Conn.  232 

Elisha,   Kemp   v.— [1918]    1   K. 

B.  (Eng.)  228  

Elling  v.  Fine— 53  Mont,  481 
Ellison,  State  ex  rel.  Tiffany  v. 

—266  Mo.  604 

Embury-Martin      Lumber      Co., 

Tuttle  v.— 192  Mich.  385 

Emery  v.  Bennett — 97  Kan.  490 
Eminent  Household  v.  Bunch — 

115  Miss.  512  

Eminent  Household,  Butler  v. — 

116  Miss.  85  

Epley  V.  Hall— 97  Kan.  549  .... 


1918C  659 

1918E  1109 

1918E  1068 
1918D  661 

1918C  891 

1918C  1063 

1918C  1042 
1918E  501 

1918C  390 
1918E  796 

1918C  584 

1918D  683 
1918D  1064 

1918E  593 

1918E  485 

1918D  422 

1918C  581 

1918C  322 

1918D  601 

1918E  176 

1918C  870 
1918D  994 

1918D  1086 
1918D  563 

191gD  1153 

1918D  270 

1918D  583 

1918D  980 

1918D  00 

1918D  288 

1918D  379 

1918E  730 
1918C  752 

1918C    1 

1918C  664 
1918D  437 

1918C  110 

1918D  1137 
1918D     151 


Ertel  Bieber  &  Co.  v.  Rio  Tinto 

Co.— [1918]    2  A.   C.  260    ...    1918D     583 
Evans,    Bergman    v. — 92    Wash. 

158    1918C     848 

Fargo,  Chapman  v.— 223  N.  Y.  32  1918E  1054 
Fargo,  Mountain  v, — 38  N.  Dak. 

432     1918D     826 

Farmers'  Loan,  etc.  Co.  v.  Mort- 
imer—219  N.  Y.  290 1918E  1159 

Fellows    ex    rel.    Union    Trust 

Co.,   First   National  Bank   v. 

—244  U.  S.  416 1918D  1169 

Fidelity,     etc.     Co.,     Wisconsin 

Zinc  Co.  v.— 162  Wis.  39 1918C     399 

Fielder  v.  Pemberton — 136  Tenn. 

440     1918E     905 

Fields  V.  Vizard  Investment  Co. 

—168  Ky.  744    1918D     336 

Fine,  Elling  v.— 53  Mont.  481  —  1918C  752 
First  National  Bank  v.  Fellows 

ex  rel.  Union  Trust  Co.— 244 

U.  S.  416   1918D  1169 

First     National     Bank,     United 

States  v.— 250  Fed.  299   1918E       36 

Fitzpatrick  v.  Owens — 124  Ark. 

167    1918C     772 

Florence   Hotel    Co.    v.   Bumpas 

—194  Ala.  69    1918E     252 

Florida    East    Coast   R.    Co.    v. 

Peters— 72  Fla.  311  1918D     121 

Florida  East  Coast  R,  Co.,  State 

ex  rel.   Railroad   Com'rs   v. — 

72  Fla.  379 1918E  1206 

Flynn  v.  Flynn— 283  111.  206  ...  1918E  1034 
Flynn,    Knopfler    v. — 135    Minn. 

333     1918E     538 

Forbes,    United    States    v. — 250 

Fed.    299    1918E       36 

Ford,   Upjohn   v.— [1918]    2   K. 

B.  48  1918E     294 

Forman  v.  Mutual  Life  Ins.  Co. 

—173  Ky.  547   1918E     880 

Fowles,  Matter  of— 222  N.  Y.  222  1918D  834 
Francis,  Martin  v.— 173  Ky.  529  1918E  289 
Frank,  Bonynge  v. — 89  N.  J.  L. 

239     1918D     211 

Franke  v.  Murray— 248  Fed.  865  1918D  98 
Frank  v.  South— 175  Ky.  416  . .  1918E  682 
Fredericksburg-  Lodge,    Grinnan 

v.— 118  Va.  588   1918D     729 

Freeman,  Wilson  v.  — 108  Tex. 

121  1918D  1203 

French  v.  Columbia  Life,  etc.  Co. 

—80  Oregon  412 1918D     484 

French,  State  ex  rel.  Taylor  v. — 

96  Ohio  St.  172  1918C     896 

Fresno   Hotel    Co.,   Brandt  v. — 

174  Cal.  789   1918D     346 

Fresno  Hotel  Co.,  Sweet  v. — 174 

Cal.  789   1918D     346 

Frew  V.  Secular- 101  Neb,  131  . .  1918E  511 
Friend,  Crosby  &  Co.,  Black orby 

v.— 134  Minn.  1 1918E     1199 

Gaines,  Bonner  Oil  Co.  r. — 108 

Tex.   232    1918C     574 

Gansley,    People    v. — 191    Mich, 

357     :,    1918E     165 

Gately-Haire  Co.  v.  Niagara  Fire 

Ins.  Co.— 221  N.  Y.  162 1918C     115 


TABLE  OF  CASES  EEPORTED. 


<:iault,  Stevenson  v. — 131  Ark. 

397  : 1918E  433 

George  Wiedemann  Brewing  Co., 

Will's  Adm'r  v.— 171  Ky.  681  1918E  62 
C^bbs  V.  Arras  Brothers— 222  N. 

Y.   332    1918D  1141 

Gibson  v.  Payne— 79  Oregon  101.1918C  383 
Gilbert,   Shuman   v. — 229   Mass. 

225    1918E     793 

Gilchrist  v.  Mystic  Workers  of 

the  World— 188  Mich.  466  ...  1918C  757 
Gillen,  Haverhill  Strand  Theatre 

v.— 229  Mass.  413   1918D     650 

Ginn,    Parkhxirst   v. — 228    Mass. 

159    1918E    982 

Glenn  v.  Kittanning  Brewing  Co. 

—259  Pa.  St.  510 1918D     769 

Godefroy    v.    Hupp— 93    Wash. 

371  1918E     494 

Goemann,  Sempier  v. — 165  Wis. 

103    1918C     670 

Goodman,  Moseley  v. — 138  Tenn. 

1    1918C     931 

Goodwin,   Hooker    v. — 91    Conn. 

463     1918D  1159 

Graham  v.  Shephard — 136  Tenn. 

418  1918E     804 

Grand  Trunk   Pacific  R.   Co.  v. 

Calgary— 55  Can.  Sup.  Ct.  103  1918D  724 
Grand  Trunk  Ry.  Ins.  etc.,  Soc, 

Wilson  v.— 78  N".  H.  210  ....  1918E  1191 
Grand  Union  Tea  Co.  v.  Lord — 

231   Fed.   390    1918C  1118 

Grant,    Houston    v. — 112    Miss. 

465     1918E     243 

Great  Northern  R.  Co.  v.  Donald- 
son—246  U.  S.  121 1918C     581 

Greenberg,  Chicago,  etc.,  R.  Co. 

v.— 139  Minn.  428   1918E     456 

Greenville,    Burnett    v.— 106    S. 

Car.  255 1918C     363 

Greenwood  v.  Royal  Neighbors — 

118  Va.  329  1918D  1002 

Gretna  v.  Bailey— 141  La.  625  1918E  566 
Griffin,  Chaplin  v.— 252  Pa.  St. 

271    1918C     787 

Grinnan  v.  Fredericksburg  Lodge 

—118  Va.  588    1918D     729 

Guaranty  Trust   Co.,  Roumania 

v.— 250  Fed.  341    1918E     524 

Guardian     Casualty,     etc.     Co., 

Northwestern  Nat.  Bank  v. — 

93  Wash.  635 1918D     644 

Gulf,  etc.  R.  Co.  V.  Bradley— 110 

Miss.    152    1918D     554 

Guthrie  v.  Holmes— 272  Mo.  215  1918D  1123 

Hadfield    V.    Lundin— 98    Wash. 

657     1918C     942 

Hall,  Epley  v.— 97  Kan.  549  ..  1918D  151 
Halliday,  Sroka  v.— 39  R.  I.  119  1918D  961 
Hall  V.  Johnson— 87  Oregon  21  . .  1918E  49 
Hall  V.  Kansas  City  Terra  Cotta 

Co.  —97  Kan.  103 1918D     605 

Hamilton  v.  Madison  Water  Co. 

—116  Me.  157   1918D     853 

Hammer  v.  Dagenhart — 247  U.  S. 

251     1918E     724 

Hankins    v.    Williamsburg    City 

Fire  Ins.  Co.— 96  Kan.  706  ...  1918C  135 
Hanley,  Dickinson  v. — 193  Mich. 

585    1918C  1063 


Hannie,  Welch  v.— 112  Miss.  79  1918C     325 
Hanover  Fire  Ins.  Co.  v.  Eisman 

—45  Okla.  639   1918D     288 

Hansen,  Wells  v.— 97  Kan.  305  1918D     230 
Harbaugh  v.  Citizens  Tel.  Co. — 

190    Mich.    421    1918E     117 

Harlow  v.  Perry— 114  Me.  460  . .   1918C       37 
Harmon,  Northwest  Auto  Co.  v. 

—250  Fed.  832  1918E     461 

Harper  v.  Virginian  R.  Co. — 76 

W.   Va.    788    1918D  1081 

Harris  v.   Carolina  Distributing 

Co.— 172  N.  Car.  14 1918C     329 

Harris  v.  Johnson— 174  Cal.  55  1918E     560 
Hartford  Fire  Ins.  Co.,  King  v. 

133  Minn.  322 1918D     861 

Hartley,  Bishop  Randall  Hospital 

v.— 24  Wyo.  408    1918E  1172 

Haslick,    Martus    v. — 195    Mich. 

432    1918D     466 

Haslick's     Estate,     In     re — 195 

Mich.  432  1918D     466 

Haverhill  Strand  Theatre  v.  Gil- 
len—229  Mass.  413 1918D     650 

Hays  V.  Hogan— 273  Mo.  1 1918E  1127 

Heine  Safety  Boiler  Co.,  Smith 

v.— 224  N.  Y.  9   1918D     316 

Hendricks,  Minnequa  Cooperage 

Co.  v.— 130  Ark.  264 1918D     687 

Hennessy  v.  Blair— 107  Tex.  39  1918  C     474 
Henry  v.  Missouri,  etc.  R.  Co. — 

98  Kan.  567    1918E  1094 

Hesdorffer  v,  Hiller— 111  Miss.  16  1918E     191 
Hettinger,       Keithley       v. — 133 

Minn.  36 1918D     376 

Heyer,  State  v.— 89  N.  J.  L.  187  1918D     284 
Heywood  v.  Northern  Assurance 

Co.— 133  Minn.  360 1918D     241 

Hiller,  Hesdorffer  v. — 111  Miss. 

16    1918E     191 

Hirshout,       Krichevsky       v. — 5 

Boyce  (Del.)  552 1918C     345 

Hitchene,  Upjohn  v.— [1918]  2  K. 

B.  48   1918E     294 

Hogan,  Hays  v.— 273  Mo.  1 1918E  1127 

Holland  v.  State— 126  Ark.  332  19180     578 
Hollingsworth  v.  Supreme  Coun- 
cil—175  N.  Car.  615 1918E     401 

Holmes  v.  Alexander — 52   Okla. 

122    1918D  1134 

Holmes,  Guthrie  v.— 272  Mo.  215  1918D  1123 
Holmes    v.    Southern    R.    Co. — 

145  Ga.  172  1918D  1182 

Holtcamp,    State   ex   rel.    Aber- 

crombie  v.— 267  Mo.  412 1918D     454 

Holt  v.  Ten  Broeck— 134  Minn. 

458     1918E     256 

Home   Ins.    Co.,   Miller   v. — 127 

Md.    140    1918E     384 

Hood  V.  Roleson- 125  Ark.  30  . .   1918E     900 
Hooker    v.    Goodwin — 91    Conn. 

463     1918D  1159 

Hoover,  Yount  v.— 95  Kan.  752  19180     148 
Hope,  Pierce  Oil  Corporation  v. — 

127  Ark.  38  1918E     143 

Hopkins,  State  v.— 54  Mont.  52  1918D     956 
Hotchkiss  V.  District  of  Colum- 
bia—44  App.  Cas.   (D.  C.)   73  1918D     683 
Houston  V.  Burns— [1918]  A.  C. 

337     19180     434 

Houston  V.  Grant— 112  Miss.  465  1918E     243 
Howard  v.  Kelly— 111  Miss.  285  1918E  1230 


8 


AN2^.  CAS.  DIGEST  (1915C-1918E). 


Hubbard  v.  Johnson — 89  Wash. 

310    

Hubbard,    Wolfenberger    v. — 184 

Ind.  25   

Hughes  V.  Outlaw— 197  Ala.  452 
Hugh  Stevenson  &  Sons  v.  Ak- 

tiengesellschaft  etc.— [1918]  2 

A.   C,  239    

Hunt,  Hyde  Park  Lumber  Co.  v. 

—90  Vt.  435  

Hupp,  Godefroy  v.— 93  Wash  371 
Hurlburt,  Kenney  v. — 88  Oregon 

688    

Hutton   V.   Curry— 93   Ohio   St. 

339    

Hyde  Park  Lumber  Co.  v.  Hunt 

—90  Vi.  435   

Hyde,  State  v.— 88  Oregon  1  . . . 
HjTjes  V.   Pullman   Co.— 223  N. 

Y.  342  

Industrial  Accident  Board,  Wig- 
gins V. — 54  Mont.  335    

Industrial  Board,  Mueller  Con- 
struction  Co.   v.— 283   111.   148 

Insurance  Co.  v.  Welch — 49  Okla. 
620    

International  Paper  Co.  v.  Mas- 
sachusetts—246  U.  S.  135  ... 

Irwin,  Mundy  v. — 20  N.  Mex.  43 

Jacobs  V.  Atchison,  etc.  R.  Co. — 

97  Kan.  247 

Jamison  v.  Reilly — 92  Wash.  538 
Jeffreys   v.   Weekly — 81    Oregon 

140    

Jenkins,  Douglas  v. — 146  Ga.  341 
Jewell  V.  Nuhn— 173  Iowa  112 
J.  F.  Brown  Co.,  Toronto  v. — 55 

Can.   Sup.   Ct.   153    

John  A.  Marshall  Brick  Co.  v. 
York  Farmers  Colonization 
Co.— 54  Can.  Sup.  Ct.  569  .. 
Johnson  v.  Brown — 138  Tenn.  395 
Johnson,  Hall  v. — 87  Oregon  21 
Johnson,  Harris  v. — 174  Cal.  55 
Johnson,  Hubbard  v. — 89  Wash. 

310    

John  T.  Connor  Co.,  Common- 
wealth v.— 222  Mass.  299 

Jones  V.   Ceres  Investment   Co. 

—60  Colo.  562 

Jones  V.  Louisville,  etc.  R.   Co. 

—109  Miss.  655    

Jones  V.  Portland— 245  U.  S.  217 

Juvenile  Court  v.  State  ex  rel. 

Humphrey— 139  Tenn.  549  ... 

Kansas  City,  Butler  v. — 97  Kan. 

239  

Kansas   City  Terra    Cotta   Co., 

Hall  v.— 97  Kan.  103 

Keeler,  Plumb  Trees  Lime  Co,  v. 

—92  Conn.  1 

Keene,   Maynard   v. — 189   Mich. 

97     

Keene's  Estate,  In  re — 189  Mich. 

97     

Kehl  V.  Taylor— 275  HI.  346  ... 
Keithley  v.  Hettinger — 133  Minn. 

36     

Keith  V.  Lockhart— 171  N.  Car. 

451     

Keith,  Walsh  v.— 196  Mich.  42 


191 8  C   84 


1918C 
1918C 


81 
872 


1918D  575 


1918E 
1918E 

191 8E 

1918C 

1918E 
1918E 


1183 
494 

737 

770 

1183 


1918C  1040 


1918E 

1918E 

1918E 

1918C 
1918D 

1918D 
1918D 

1918D 
1918C 
1918D 


1164 

808 

471 

617 
713 

384 
160 

690 
322 
356 


1918D  888 


1918C 
1918C 
19l'8E 
1918E 

1918C 

1918C 

1918C 

1918D 
1918E 


1013 
672 

49 
560 

84 

337 

429 

180 
660 


1918D  752 


1918D 

801 

1918D 

605 

1918E 

831 

1918E 

367 

1918E 
1918D 

367 
948 

1918D 

376 

1918D 
1918E 

9161 
217 

Kellas  v.  Slack,  etc.  Co.— 129  Md. 

535  

Kelly,  Howard  v.— Ill  Miss.  285 
Kelly  V.  Kennedy— 133  Minn.  278 
Kelso  V.  Cook— 184  Ind.  173  .. 
Kemp  v.  Elisha— [1918]  1  K.  B. 

(Eng.)    228    

Kennedy,    Kelly    v. — 133    Minn. 

278 

Kenney  v.  Hurlburt — 88  Oregon 

688    

Kilbourne,    Tobey    v.— 222    Fed. 

760    

King  v.  Hartford  Fire  Ins.  Co. — 

133  Minn.  322 

King  v.  Springfield  Fire,  etc.  Ins. 

Co.— 133  Minn.  322   

Kittanning   Brewing   Co.,   Glenn 

v.— 259  Pa.  St.  510    

Knight's     Estate— 253     Pa.     St. 

290  

Knopfler    v.    Flynn — 135    Minn. 

333     

Krachanake  v.  Acme  Mfg.  Co. — 

175  N.  Car.  435   

Krichevsky  v.  Hirshout — 5  Boyce 

(Del.)    552    

Kuryer  Publishing  Co.  v.  Mess- 

mer— 162  Wis.  565    

Lake  County  v.  Westerfield— 273 

111.    124    

Lambert,     Toronto    v. — 54  Can. 

Sup.  Ct.  200   

Lancaster  Electric  Light  Co.  v. 

Taylor— 168  Ky.  179 

Landfried,  Viosca  v.— 140  La.  609 
Lane,  Central  Pacific  R.  Co.  v. — 

46  App.  Cas.  (D.  C.)  374  ... 
La  Salle  Extension  University  v. 

Ogbum— 174  N.  Car.  427  .. 
Le   Barron,    State   v. — 24    Wyo. 

519     

Lee,    Most    Worshipful    United 

Grand  Lodge  v.— 128  Md.  42 
Lee,  Western  Union  Tel.  Co.  v. 

—174  Ky.  210 

Le   Flore,  Lowrey  v.— 48   Okla. 

235     

Lewis    V.    West    Virginia    Pulp, 

etc.  Co.  —76  W.  Va.  103  ... 
Linn  v.  Collins— 77  W.  Va.  592 
Little,  Modra  v.— 223  N.  Y.  452 
Lockhart,  Keith  v.— 171  N.  Car. 

451    

London  Assurance  Corp.,  Becker 

v.— [1918]  A.  C.  101 

Long  Beach,  Chafor  v. — 174  Cal. 

478     

Lord,  Grand  Union   Tea   Co.  v. 

—231  Fed.  390   

Louisville,  etc.  R.   Co.,  Jones  v. 

—109  Miss.  655    

Louisville,  Vogt  v. — 173  Ky.  119 
Lowrey  v.  Le  Flore — 48  Okla.  235 
Lundin,    HadfieJd    v.— 98    Wash. 

657     


191 8D 

640 

1918E 

1230 

1918D 

164 

1918E 

68 

1918E 

730 

1918D 

164 

1918E 

737 

1918C 

470 

1918D 

861 

1918D 

861 

1918D 

769 

1918E 

211 

1918E 

538 

1918E 

340 

1918C 

345 

1918C 

778 

1918E 

102 

1918D 

57 

1918C 

591 

1918C 

1193 

1918C 

1002 

1918C 

887 

1918D 

998 

1918E 

1174 

1918C 

1026 

19181!: 

1001 

1918D 

754 

1918C 

86 

1918D 

177 

1918D 

916 

1918C 

367 

1913D 

106 

1918C 

1118 

1918D 

180 

1918E 

1040 

1918E 

1001 

1918C     942 


MacCann,  New  Method  Laundry 

Co.  v.— 174   Cal.   26    1918C  1022 

Mackintosh,  Toy  r. — 222  Mass. 

430     1918C  1188 


TABLE  OF  CASES  REPORTED. 


Madison    Water    Co.,    Hamilton 

v.— 116  Me.  157    1918D     853 

Maiden,   Boutlier   v.— 226   Mass. 

479     1918C     910 

Maiden  Electric  Co.,  Boutlier  v. 

—226   Mass.   479    1918C     910 

Mauson  v.  Curtis— 223  N.  Y.  313  1918E  247 
Markline,  S.  H.  Kress  &  Co.  v. 

—117  Miss.  37    1918E     310 

Marion     County     Lumber     Co., 

Berry  v.— 108  S.  Car.  108  1918E  877 
Marshall  County  v.  Kokke — 134 

Minn.  346   1918D     932 

Martin  v.  Bankers'  Trust  Co. — 

18    Ariz.    55    1918E  1240 

Martin  v.  Francis— 173  Ky.  529  1918E  289 
Martin,  Sparks  v.— 96  Kan.  282  1918C  324 
Martin    v.    Vansant — 99    Wash. 

1U6     1918D  1147 

Alar  t  us    V.    Haslick — 195    Mich. 

432     1918D     466 

^Maryland   Dredging,   etc.   Co.   v. 

United  States— 241  U.  S.  184  1918E  32 
Massachusetts       Accident       Co., 

Rocci  v.— 222  Mass.  336    1918C     529 

Massachusetts  Bonding,  etc.  Co., 

Betts  v.— 90  N.  J.  Law  632  1918E  520 
Massachusetts,  International 

Paper  Co.  v.— 246  U.  S.  135  .  .  1918C  617 
Mathews    v.    Minneapolis    Seed 

Co.— 139   Minn.   11    1918E     481 

Mavnard  v.  Keene— 189  Mich.  97  1918E  367 
McClelland    v.    Rose— 247    Fed. 

721     1918C     341 

McClintock,    etc.    Co.    v.    Aetna 

Explosives    Co.— 260    Pa.    St. 

191     1918E  1078 

McClintock  v.  McClure— 171  Ky. 

714     1918E       96 

McClure,      McClintock      v.— 171 

Ky.  714    1918E       96 

McCue  V.  State — 75  Tex.   Crim. 

137     1918C     674 

McDonald,  Thwing  v. — 134  Minn. 

148     1918E     420 

McKeehan  v.  Vollmer- Clearwat- 
er Co.— 30  Ida.  505 1918E  1197 

McXeer    v.    Xorfleet — 113    Miss. 

611     1918E     436 

McXulty,    Stair    v.— 133    Minn. 

136     1918D     201 

McRaven,    New    Standard    Club 

v.— Ill  Miss.  92   1918E     274 

Meisle  v.  New  York  Central,  etc. 

R.  Co.— 219  N.  Y.  317 1918E  1081 

Menipliis,  Moyers  v. — 135  Tenn. 

263     1918C     854 

Memphis    St.    R.    Co.    v.    Cavell 

—135   Tenn.  462    1918C       42 

Meriwether,    Stark   v. — 98    Kan. 

10     1918E     993 

iI(Mrimac  Mfg.  Co.  v.  Bibb— 124 

Ark.    189    1918C     951 

Messmer,  Kurver  Publishing  Co. 

v.— 162  Wis'  565 1918C     778 

Metropolitan    Water    Board    v. 

Dick.   Kerr   &  Co.— [1918]    A. 

C.  119    1918C     390 

Mever,    United    States    v. — 241 

Fed.    305    1918C     704 

Miller    v.    Home    Ins.    Co.— 127 

Md.    140     1918E     384 


Millar  v.  Millar— 175  Cal.  797  . .  1918E  184 
Miller  v.  Skaggs— 79  W.  Va.  645  1918D  929 
Minneapolis,  etc.  R.  Co.,  Cham- 
bers v.— 37  X.  Dak.  377   1918C     954 

Minneapolis   Seed   Co.,  Mathews 

v.— 139  Minn.  11    1918E     481 

Minneapolis  Seed  Co.,  Moorhead 

v.— 139  Minn.  11    1918E     481 

Minnequa      Cooperage      Co.      v. 

Hendricks— 130  Ark.  264   1918D     687 

Missouri,  etc.  R.  Co.,  Henry  v. — 

98    Kan.    567     1918E  1094 

Missouri  Pacific  R.  Co.,  Sunder- 
land   Bros.    Co.   v.— 101    Neb. 

119 1918D  1120 

Mode,  Ex  p.— 77  Tex.  Crim.  432  1918E  845 
Modern  Brotherhood,  etc.  v.  Bail- 
ey—50  Okla.  54 1918E     744 

Modern  Woodmen,  Armstrong  v. 

—93  Wash.  352    1918E     263 

Modern  Woodmen  v.  Berry — 100 

Xeb.    820    1918D     302 

Modern    Woodmen,    ilorse    v. — 

166  Wis.  194  1918D     480 

Modern  Woodmen,  Page  v. — 162 

Wis.   259    1918D     756 

Modra  v.  Little— 223  N.  Y.  452  1918D  177 
Montain   v.    Fargo — 38   N.   Dak. 

432     1918D     826 

Moore,      Scotten     v. — 5      Boyce 

(Del.)     545     1918C     409 

Moore  v.  Twin  City  Ice,  etc.  Co. 

—92  Wash.  608 ' 1918D     540 

Moorhead    v.    Minneapolis    Seed 

Co.— 139  Minn.  11   1918E     481 

Morehead     v.     State— 12     Okla. 

Crim.  62  1918C     416 

Morris  v.  Baron— [1918]  A.  C.  1 

(Eng.) 1918C  1197 

Morrow,       Armstrong      v. — 166 

Wis.  1  1918E  1156 

Morse  v.  Modern  Woodmen^l66 

Wis.    194    1918D     480 

Morse,  State  v.— 35  S.  Dak.  18  1918C  570 
Mortimer,    Farmers'    Loan,    etc. 

Co.  v.— 219  N.  Y.  290    1918E  1159 

Morton,  State  v.— 38  S.  Dak.  504  1918E  913 
Moseley  v.  Goodman — 138  Tenn. 

1    1918C     931 

Most   Worshipful  United  Grand 

Lodge  V.  Lee— 128  Md.  42 1918E  1174 

Mote,  Cassady  v.— 184  Ind.  173  1918E  68 
Moyers  v.  Memphis — 135  Tenn. 

263     1918C     854 

Moyers,    Newman    v. — 47    App. 

Cas.   (D.  C.)   102   1918E     528 

M'Robb,  Charles  R.  Davidson  & 

Co.  v.— [1918]  2  A.  C.  304  . .  1918D  670 
Mueller  Construction  Co.  v.  In- 
dustrial Board- 283  111.  148  . .  1918E  808 
Muler,  Tingley  v.— [1917]  2  Ch. 

144     1918C     726 

Mundy  v.  Irwin— 20  N.  Mex.  43  1918D  713 
iMurphy  v.  Wilson — 37  N.  Dak. 

300     . . 1918E  1101 

Murray,    Franke    v. — 248     Fed. 

865     1918D       98 

Mutual    Life    Ins.    Co.,    Forman 

v.— 173  Ky.  546   1918E     880 

Mystic   Workers   of   the   World, 

Gilchrist  v.— 188  Mich.  466   . .    1918C     757 


10 


ANN.  CAS.  DIGEST,  (1918C-1918E). 


National  Union  Fire  Ins.  Co.  v. 

Dickinson— 92  Wash.  230 1918C  1042 

Neely  v.  Wilmore— 124  Ark.  460  1918D  77 
Nelson,  Williams  v. — 228  Mass. 

191    1918D    638 

New  England  Equitable  Ins.  Co., 

Wasco  County  v.— 88  Ore.  465  1918E     656 
Newman    v.    Movers — 47    App. 

Cas.   (D.  C.)    102    1918E    628 

New    Method    Laundry    Co.    v. 

MacCann— 174  Cal.  26 1918C  1022 

New  Standard  Club  v.  McRaven 

—111  Miss.  92 1918E    274 

New  York  Central,  etc.  R.  Co., 

Meisle  v.— 219  N.  Y.  317   ....   1918E  1081 
New  York  "Life  Ins.  Co.  v.  Dodge 

—246  U.  S.  357    1918E     593 

New  York,  Riverside  Contract- 
ing Co.  v.— 218  N.  Y.  596   ..   1918C  1075 
New  York,  Weisman  v. — 210  N. 

Y.   178    1918E  1023 

Niagara   Fire  Ins.   Co.,  Gately- 

Haire  Co.   v.— 221   N.   Y.   162  1918C     115 
Nicholas  Bldg.   Co.,  Smith  v. — 

93  Ohio  St.  101   1918D     206 

Norfleet,   McNeer   v. — ^113   Miss. 

611    1918E    436 

Norfolk,   etc.   R.    Co.,   Chancery 

v.— 174  N.  Car.  351    1918E     680 

Normile,  United  States  v.— 239 

U.  S.  344  1918E      34 

North  End  Improvement  Assoc, 

Dodge  v.— 189  Mich.  16 1918E    485 

Northern    Assurance    Co.,    Hey- 

wood  v.— 133  Minn.  360 1918D     241 

Northern    Pacific    R.    Co.,    Sim- 
mons v.— 88  Wash.  384 1918C  1184 

Northwest  Auto  Co.  v.  Harmon 

—250  Fed.  832  1918E     461 

Northwestern     Nat.     Bank     v. 

Guardian    Casualty,    etc.    Co. 

—93  Wash.  635 1918D     644 

Nuhn,  Jewell  v.— 173  Iowa  112  1918D    356 

Oak  Creek,  United  States  Glue 

Co.  v.— 247  U.  S.  321    1918E     748 

Ochs  V.   Chicago,   etc.  R.   Co. — 

135  Minn.  323    1918E     337 

O'Connor's     Will,     In     re— 173 

Iowa  318   1918C     378 

O'Flaherty,  Virginia  R.  etc.  Co. 

v.— 118  Va.  749   1918D    471 

Ogburn,  La  Salle  Extension  Uni- 
versity v.— 174  N.  Car.  427  . .  1918C  887 
O'Neill-Adams    Co.  v.  Eklund— 

89  Conn.  232   1918D     379 

Orange,    Buchanan    v. — 118    Va. 

511    1918D     391 

Order     of     United     Commercial 

Travelers,  Suits  v. — 139  Minn. 

246    1918E    608 

Oregon- \Vashington   R.    etc.   Co. 

V.    Spokane,   etc   R.    Co. — 83 

Ore.    528    1918C     991 

Osier,  Cain  v.— 168  Iowa  59  ....  1918C  1126 
Outlaw,  Hughes  v.— 197  Ala.  452  1918C  872 
Owens,  Fitzpatrick  v. — 124  Ark. 

167  1918C     772 

Page  V.  Modern  Woodmen — 162 

Wis.  259  1918D     756 

Palmer  v.  Cully— 52  Okla.  454  . .   1918E     375 


Papineau,  Carter  v. — ^222  Mass. 

464  1918C     620 

Park  City  v.  Daniels — 46  Utah 

554  1918E     107 

Parker  v.  Power— 127  Md.  598  . .  1918  C  604 
Parkersburg,    etc.    Sand    Co.    v. 

Smith— 76  W.  Va.  246 1918E     449 

Parkhurst    v.    Ginn — 228    Mass. 

159  1918E     982 

Parkside     Cemetery    Assoc,     v. 

Cleveland,    etc.    Traction    Co. 

—93  Ohio  St.  161   1918C  1051 

Parsons  v.  Dils— 172  Ky.  774  ...  1918E  796 
Patterson   v.   Blatti — 133   Minn. 

23  1918D       63 

Paul  V.  Pye^isS  Minn.  13  '. . . . '.  1918E  286 
Paulson  V.  Weeks— 80  Ore.  468  1918D  741 
Payne,  Gibson  v.— 79  Ore.  101  1918C  383 
Pearson    v.    Easterling — 107    S. 

Car.   265    1918D     980 

Pease    v.    Rathbun -Jones    Engi- 
neering Co.— 243  U.  S.  273  . .   1918C  1147 
Pemberton,       Fielder       v. — 136 

Tenn.    440     1918E     905 

Peninsula  Bank  v.  Wolcott— 232 

Fed.   68    1918C     477 

Pennsylvania  R.  Co.  v.  Reading 

—254  Pa.  St.  110 1918E     562 

People  V.  Brady— 272  HI.  401  . .  1918C  540 
People  V.  Brown— 273  HI.  169  . .  1918D  772 
People   ex  rel.  Amestoy  Estate 

Co.  V.  Van  Nuys  Lighting  Dis- 
trict—173  Cal.  792   1918D     255 

People  ex  rel.  Golconda  Northern 

Ry.  V.  Toledo,  etc.  R.   Co.— 

280  111.   495    191SD     224 

People  ex  rel.  E^roner  v.  Abbott 

—274  ni.  380   19185)     450 

People   ex   rel.    State   Board   v. 

Pitcher— 61  Colo.  149 1918D  1185 

People    V.    Gansley — 191    Mich. 

357     1918E     165 

People's  Tobacco  Co.  v.  Ameri- 
can  Tobacco   Co.— 246   U.   S, 

79    1918C     537 

Perry  Bros.  v.  Diamond  Ice,  etc. 

Co.— 92  Wash.  105    1918C     891 

Perry,  Harlow  v.— 114  Mc  460  1918C  37 
Peters,    Florida   East    Coast   R. 

Co.  v.— 72  Fla.  311  1918D     121 

Pfiester  v.  Western  Union  Tel. 

Co.— 282  111.  69   1918D     738 

Philadelphia     v.     Bergdoll— 252 

Pa.  St.  545   1918C  1141 

Philadelphia's  Petition— 253  Pa. 

St.  434   1918E     120 

Pierce  Oil  Corporation  v.  Hope 

—127  Ark.  38  1918E     143 

Piper,   Boston,   etc   R.   R.   v. — 

246   U.    S.    439    1918E     469 

Pitcher,    People    ex    rel.    State 

Board  v.— 61  Colo.  149   1918D  1185 

Pitman  v.  Drabelle— 267  Mo.  78  1918D  601 
Plum  Trees  Lime  Co.  v.  Keeler 

—92  Conn.   1    1918E    831 

Poling  V.  State— 12  Okla.  Crim. 

27     1918E     663 

Pons,  Succession  of— 142  La.  721  1918D  939 
Poole  V.  Union  Trust  Co. — 191 

Mich.  162 1918E     622 

Porizky  v-  Corless— 46  Utah  495  1918D     198 


TABLE  OF  CASES  EEPORTED. 


11 


Portland,  Jones  v.— 245  U.  S. 

217  1918E  660 

Portuguese-American     Bank     v. 

Welles— 242  U.  S.  7 1918D     643 

Power  V.  Cade— 112  Miss.  88..  1918E  1146 
Power,  Parker  v.— 127  Md.  598  1918C  604 
Power  V.  Ratliff— 112  Miss.  88  1918E  1146 
Powers    V    Dodgson — 194    Mich. 

133     1918D     422 

Provo  City  v.  Provo  Meat,  etc, 

Co.— 49   Utah   528    1918D     530 

Provo  Meat,  etc.  Co.,  Provo  City 

V.  49  Utah  528  1918D     530 

Pullen  V.  Carlton— [1918]   2  K. 

B.   207    1918D  1201 

Pullman  Co.,  Hynes  t.— 223  N. 

Y.   342    1918C  1040 

Purvis  V.  Shuman— 273  111.  286  1918D  1176 
Putnam    v.    Browne — 162    Wis. 

524    1918C  1085 

Pye,  Paul  v.— 135  Minn.  13 1918E     286 

Ealeigh  County  Court  v.  Cottle 

—79  W.  Va.  661   1918D     510 

Kalston  v.  Dunaway — 123  Ark. 

12    1918C     870 

Rathbun-Jones  Engineering  Co., 

Pease  v.— 243  U.  S.  273  1918C  1147 

Ratliff,  Power  v.— 112  Miss.  88  1918E  1146 
Ray  V.  Shemwell— 174  Ky.  54  . .  1918C  1122 
Reading,  Pennsylvania  R.  Co.  v. 

—254  Pa.  St.  110  1918E     562 

Redding,  Chicago,  etc.  R.  Co.  v. 

—124  Ark.  368  1918D     183 

Redding,  State  Journal  Co.  v. — 

175   Ky.    388    1918C     332 

Rederiaktiebolaget,    etc.    Aktie- 

selskabet    Korn-Og,    etc. — 250 

Fed.   935    1918E    491 

Reilly,    Jamison    v. — 92    Wash. 

538    1918D     160 

Rex,  Buck  v. — 55  Can.  Sup.  Ct. 

133     1918D  1023 

Reynolds  v.  Adams  Express  Co. 

—172  N.  Car.  487 1918C  1071 

Reynolds  v.  State— 18  Ariz.  388  1918D     879 

Rice's  Case  229  Mass.  325 1918E  1052 

Richmond,  Walker  v.— 173   Ky. 

26     1918E  1084 

Ridgeway  v.  Sayre  Electric  Co. 

—258  Pa.  St.  400   1918D         1 

Rio  Tinto  Co.,  Dynamit  Actien- 

Gesellschaft,     etc.     v.— [1918] 

2  A.  C.  260  1918D     583 

Rio   Tinto    Co.,   Ertel   Bieber   & 

Co.  v.— [1918]  2  A.  C.  260  1918D  683 
Rio  Tinto   Co.,  Vereinigte  Koe- 

nigs,  etc.  v.— [1918]  2  A.  C. 

260    1918D     583 

Ritzman   v.    Campbell — 93   Ohio 

St.    246    1918D     248 

Riverside     Contracting     Co.     v. 

New  York— 218  N.  Y.  596  ....  1918C  1075 
Robertson  v.   Smith — 191   Mich. 

660    1918D     145 

Robinson    v.    Daughtry — 171    N. 

Car.    200    1918E  1186 

Robinson,  Wilson  v. — Zi  N.  Mex. 

422    1918C       49 

Rocci  V.  Massachusetts  Accident 

Co.— 222  Mass.  336   1918C     529 


Rokke,  Marshall  County  v. — 134 

Minn.    346 1918D     932 

Roleson,  Hood  v.— 125  Ark.  30  1918E  900 
Rose  v.  Balfe— 223  N.  Y.  481  ...  1918D  238 
Rose,    McClelland    v.— 247    Fed. 

721    1918C     341 

Rosman  v.  Travelers'  Ins.  Co. — 

127  Md.  689   1918C  1047 

Ross,    Bawlf    Grain    Co.    v. — 55 

Can.   Sup.   Ct.  232    1918E     319 

Roswell  V.  Bateman — 20  N.  Mex. 

77    1918D     426 

Roth   Brothers    Co.,   Stack  v. — 

162  Wis.  281  1918C     741 

Roumania    v.    Guaranty    Trust 

Co.— 250  Fed.  341   1918E     524 

Rowell  V.  Rowell— 97  Kan.  16  . .  1918C  936 
Royal   Neighbors,  Greenwood  v. 

—118  Va.  329 1918D  1002 

Saalfield  v.  United  States— 246 

U.  S.  610  1918E        1 

St.  John,  South  Norwalk  Trust 

Co.  v.— 92  Conn,  168   1918E  1090 

St.  Louis,  etc.  R,  Co.  v.  Crews — 

51  Okla.  144  1918C     823 

St.  Paul,  SuUwold  v,— 138  Minn, 

271    1918E     835 

Sanders,  State  ex  rel.  Cole  v. — 

174  N.  Car.  112 1918D  1033 

Sandles,    Williams    v.— 93    Ohio 

St.    92    1918D     154 

Saunders  v.  Arlington — 147  Ga. 

581    1918D     907 

Saville  v.  Corless— 46  Utah  495  1918D  198 
Saylor  v.  Crooker- 97  Kan,  624  1918D  473 
Sayre  Electric  Co.,  Ridgeway  v. 

—258  Pa.  St.  400   1918D         1 

Schaefer  v.  Washington  Safety 

Deposit  Co.— 281  111.  43 1918  C     906 

Schaeffer,  State  v.— 96  Ohio  St. 

215    1918E  1137 

Schenk  v.  Ann  Arbor — 196  Mich. 

75    1918E     267 

Schorling,  American  Wooden- 
ware  Mfg.  Co.  v.— 96  Ohio.  St. 

305    1918D     318 

Schweizer,  De  Cicco  v,— 221  N, 

Y.  431  1918C  816 

Scotten  V.  Moore — 5  Boyce 

(Del.)  545  1918C  409 

Scougale,  Thomas  v. — 90  Wash. 

162    1918C     452 

Secular,  Frew  v.— 101  Neb,  131  1918E  511 
Scovill    Mfg.    Co.   V.    Cassidy — 

275  111.  462   1918E     602 

Scullin-Gallagher  Iron,  etc.  Co., 

State  v.— 268  Mo.  178   1918E     620 

Seavey,  Davis  v.— 95  Wash.  57  1918D  314 
Sempier  v.  Goemann — 165  Wis. 

103    1918C     670 

Shannon  v.  Abrams- 98  Kan.  26  1918E  502 
Shapiro,  State  v.— 131  Md.  168  1918E  196 
Shaughnessy  v.  Boston,  etc.  R. 

R.— 222  Mass.  334    1918C     376 

Sheffield  v,  Cooke— 39  R.  I.  217  1918E  961 
Shemwell,  Ray  v.— 174  Ky.  54  1918C  1122 
Sheppard,    Bulletin    Co.    v. — 55 

Can.  Sup.  Ct.  454  1918E  151 

Shephard,  Graham  v. — 136  Tenn. 

418  ; 1918E  804 


12 


ANX.  CAS.  DIGEST  (lOlbC-l'JiNK;. 


S.  H.  Kress  &  Co.  v.  Markline — 

117   Miss.   37    1918E     310 

Shunian    v.    Gilbert— 229    Mass. 

225     1918E     793 

Shuman,  Purvis  v.— 273  111.  286  1918D  1175 
Sigmon,    Campbell    v. — 170    X. 

Car.  348   1918C       40 

Silverman    v.    Betti — 222    Mass. 

142    1918C       90 

Simmons  v.  Northern  Pacific  R. 

Co.— 88  Wash.  384    1918C  1184 

Skaggs,  Miller  v.— 79  W.  Va.  645  1918D  929 
Skillings,   Collins  v. — 224  Mass. 

275     1918D     424 

Slack,   etc.    Co.,   Kellas    v.— 129 

Md.   535    1918D     640 

Smead  v.  Stearns— 173  Iowa  174  1918C  745 
Smith  V.  Browne— 222  X.  Y.  222  1918D  834 
Smith  V.  Dwight— 80  Oregon  1  1918D  563 
Smith  .V.  Heine  Safety  Boiler  Co. 

—224  X^.  Y.  9   1918D     316 

Smith   V.   Nicholas   Bldg.    Co. — 

93   Ohio   St.    101    1918D     206 

Smith,    Parkersburg,    etc.    Sand 

Co.  v.— 76  W.  Va.  246   1918E     449 

Smith,  Robertson  v. — 191   Mich. 

660     1918D     145 

Smith.  Union  Securities  Co.  v. — 

93    Wash.    115    1918E     710 

Smythe   v.    Smythe — 80    Oregon 

150     1918D  1094 

South    Covington,    eto.    St.    R. 

Co.,  Dayton  v.— 177  Ky.  202  1918E  229 
Soiitliern     Pacific     Co.,     United 

Brokers     Co.     v. — 86     Oregon 

607     1918D     814 

Soutliern  R.  Co.,  Holmes  v. — 145 

'  Ga.    172    1918D  1182 

Southern   R.    Co.    v.    Vaughan's 

Adm'r— 118  Va.  692    1918D     842 

Southern      Wisconsin      R.      Co., 

Coombs  v.— 162  Wis.  Ill  ..  1918C  532 
South,  Frank  v.— 175  Ky.  416  1918E  682 
South  Xorwalk  Trust  Co.  v.  St. 

John— 92    Conn.    168    1918E  1090 

Spain  V.  Spain— 177  Iowa  249. .  .  1918E  1225 
Sparks  v.  Martin— 96  Kan.  282  1918C  324 
Spencer   v.    Spencer — 219   N.   Y. 

459     1918E     943 

Spokane,    etc,    R.    Co.    Oregon- 
Washington   R.   etc.    Co.   V. — 

83  Oregon  528    1918C     991 

Springfield    Fire.    etc.    Ins.    Co., 

King  v.— 133  Minn.  322  ...  1918D  861 
Sroka  v.  Halliday— 39  R.  I.  119  1918D  961 
Stack  V.  Roth  Brothers  Co.— 162 

Wis.  281   1918C     741 

Stair  V.  McXulty— 133  Minn.  136  1918D  201 
Standard  Brewing  Co.  v,  Weil — 

129  Md.  487 1918D  1143 

Stark  V.  Meriwether— 98  Kan.  10  1918E  993 
State  V.  Angelo— 109  Miss.  624  1918D  237 
State  V.  Crowe— 130-  Ark.  272  1918D  460 
State,  Davis  v.— 30  Idaho  137  . .  1918D  911 
State  V.  Davis— 171  X.  Car.  809  1918E  1168 
State  V.  Da\is— 39  R.  I.  276  1918C  563 
State  V.  Heyer— 89  X.  J.  L.  187  1918D  284 
State,  Holland  v.— 126  Ark.  332  1918C  578 
State  V,   Hopkins— 54   Mont.   52  1918D     956 

State  v.  Hyde— 88  Ore.  1 .  .    1918E     688 

State  V.  T^  Barron— 24  Wyo.  5ld  1918D     998 


State,  McCue  v. — 75  Tex.  Crim. 

137     1918C     674 

State,     Moreliead    v. — 12     Okla. 

Crim.    62    1918C     416 

State  V.  Morse— 35  S  Dak  18  1918C  570 
State  V.  Morton— 38  S.  Dak.  504  1918E  913 
State,  Poling  v.— 12  Okla.  Crim. 

27     1918E     663 

State,     Reynolds     v. — 18     Ariz. 

388     1918D     879 

State  v.  Schaeffer— 96  Ohio  St. 

215 1918E  1137 

State   v.   Scullin-Gallagher   Iron, 

etc.   Co.— 268   Mo.   178    1918E     620 

State  v.  Shapiro— 131  Md.  168  1918E  196 
State,  Thomas  v.— 117  Miss.  532  1918E  371 
State  v.  Wellraan— 102  Kan.  503  1918D  1006 
State  v.  Whitaker— 103  S.   Car. 

210     1918E     467 

State  V.  Wilson— 141  La.  404  .  .  1918D  789 
State    ex.    rel.    Abercrombie    v. 

Holtcamp  —267    Mo.   412    1918D  454 

State  ex  rel.  Brassell  v.  Teasley 

194  Ala.  574   1918E     347 

State  ex  rel.  Campbell  v.  Stew- 
art—54  Mont.  504   1918D  1101 

State  ex  rel.  Cole  t.  Sanders — 

174  X^.  Car.  112   1918D  1033 

State  ex  rel.  Conwav  v.  District 

Board— 162  Wis.  482    1918C     584 

State  ex  rel.  Corporation  Com- 
mission V.  Dunn — 174  N.  Car. 

679     1918D  1086 

State  ex  rel.  Humphrej^,  Juvenile 

Court  v.— 139  Tenn.  549  ...  1918D  752 
State    ex   rel.   Jones   v.    West — 

139    Tenn.    522    1918D     749 

State  ex  rel.  Railroad  Cora'rs  v. 

Florida    East    Coast    R.    Co. 

—72  Fla.  379    1918E  1206 

State  ex  rel.  Schwarz,  Williams 

v.— 197    Ala.    40    1918D     869 

State  ex  rel.  Sperrv,  etc.  Co.  v. 

Weigle— 166  Wisi  613    1918D     707 

State  ex  rel.  Tavlor  v.  French — ■ 

96  Ohio  St.  172   1918C     896 

State  ex  rel.  Tiffany  v.  Ellison — 

266  Mo.  604    1918C         1 

State  Journal  Co.  v.  Redding 

—175  Ky.  388 1918C  332 

Stearns,  Smead  v.— 173  Iowa  174  1918C  74.'» 
Stephens,  Bush  v.— 131  Ark.  133  1918E  259 
Stephens    v.     Collison — 274    111. 

389     1918D     559 

Stevenson  v.  Gault — 131  Ark. 

397  ' 1918E  433 

Stewart's    Estate— 253    Pa.    St. 

277     1918E  1216 

Stewart,  State  ex  rel.  Campbell 

V.   —54   Mont.   504    1918D  1101 

Stiles,   Dickinson   v.— 246   U.   S. 

631     1918E     501 

Stockwell,  Bennett  v. — 197  Mich. 

.50     1918E  1193 

Stoner,  Buhrnson  v.— 275  111.  41  1918D  1054 
Strasner  v.  Carroll— 125  Ark.  34  1918E  306 
Suburban    Gas,    etc.    Co.,    Bout- 

lier  v.— 226  Mass.  479   1918C     910 

Succession  of  Pon8— 142  La.  721  1918D  939 
Suits  V.  Order  of  United  Com- 
mercial   Travelers — 139   Minn. 

246     1918E     508 


TABLE  OF  CASES  REPORTED. 


as 


Sullwold  V.  St.  Paul.— 138  Minn. 

271     1918E     835 

Sunderland  Bros.  Co.  v.  Missouri 

Pacific  R.  Co.— 101  Neb.  119  .  .  1918D  1120 
Supreme  Council,  Hollingsworth 

v.— 175  X.  Car.  615    1918E     401 

SuprenW  Lodge,  Dworak  v.— 101 

Xeb.    297    1918D  1153 

Sweet  V.  Fresno  Hotel  Co. — 174 

Cal.  789    1918D     346 

Taylor,  Kehl  v.— 275  111.  346  ...  1918D  '  948 
Tavlor,  Lancaster  Electric  Light 

Co.  v.— 168  K}'.  179   1918C     591 

Teasley,  State  ex  rel.  Brassell  v. 

—194   Ala.    574    1918E     347 

Teeters  v.  Des  Moines — 173  la. 

473     1918C     659 

Ten  Broeck,  Holt  v.— 134  ilinn. 

458     1918E     256 

Thomas  v.   Scougale — 90  Wash. 

162    1918C     452 

Thomas  v.  State— 117  Miss.  532  1918E  371 
Thompson,    Avery    v. — 117    Me. 

120     1918E  1122 

Thwing  V.  McDonald — 134  Minn. 

148     1918E     420 

Tingley  v.  MuUer— [1917]  2  Ch. 

144     1918C     726 

Tobey    v.    Kilbourne— 222    Fed. 

760    1918C     470 

Toledo,   etc.    R.    Co.,   People   ex 

rel.  (iolconda  Northern  Ry.  v. 

—280   111.    495    1918D     224 

Toronto  v.  J.  F.  Brown  Co. — 55 

Can.   Sup.   Ct.   153    1918D     888 

Toronto    a*.    Lambert — 54     Can. 

Sup.    Ct.   200    1918D       67 

Townsend     v.     Chamberlain^Sl 

Oregon   163    1918C     330 

Toy    V.    Mackintosh— 222    Mass. 

430     1918C  1188 

Trading  Stamp  Cases — 166  Wis. 

613     1918D     707 

Travelers'  Ins.  Co.,  Kosman  v. — 

127  Md.  689  1918C  1047 

Traverse  City  v.  Blair  Town- 
ship—190  Mich.  313  1918E       81 

Tiittle  V.  Emburv-Martin  Lum- 
ber Co.— 192  Mich.  385   1918G     664 

Twin   Citv  Ice,  etc.   Co.,  Moore 

v.— 92   Wash.   608    1918D     540 

Union  Securities  Co.  v.  Smith — 

93    Wash.    115    1918E     710 

Union    Trust     Co.,    Poole    v, — 

191   Mich.    102    1918E     622 

United  Brokers  Co.  v.  Southern 

Pacific  Co.— 86  Oregon  607  •  .  1918D  814 
United  States,  Atchison,  etc.  R. 

Co.  v.— 244  U.  S.  336    1918C     794 

United   States,   Board   of   Trade 

v.— 246.  U.  S.  231    1918D  1207 

United     States    v.     Carter— 250 

Fed.  .299    1918E       36 

United  States  Fidelity,  etc.   Co. 

v.  Burke— 238  Fed.  881    1918C       93 

United  States  v.  First  National 

Baik- 250    Fed.    299    1918E       36 

United     States     v.     Forbes— 250 

Fed.    299     1918E       36 

United  States   Glue   Co.   v.   Oak 

Creek— 247   U.   S.   321    1918E     748 


United  States,  Maryland  Dredg- 
ing,   etc.    Co.    v.— 241    U.    S. 

184     \ 1918E       32 

United     States     v,     Meyer — 241 

Fed.    305    1918C     704 

United    States    v.    Normile — 239 

U.  S.  344   1918E       34 

United  States,  Saalfield  v.— 246 

U.    S.    610    1918E         1 

Unknown  Heirs,  Baca  v. — 20  N. 

Mex.    1     1918C     612^ 

Upjohn  V.  Ford— [1918]  2  K.  B. 

48     1918E     294 

Upjohn    v.    Kitchens— [1918]    2 

K.   B.   48    1918E     294 

Van     Nuys     Lighting     District, 

People  ex  rel.  Amestoy  Estate 

Co.  v.— 173  Cal.  792 1918D     255 

Vansant,    Martin    v. — 99    Wash, 

106     1918D  1147 

Vaughan's    Adm'r,    Southern   R, 

Co.  v.— 118  Va.  692    1918D     842 

VeVeinigte   Koenigs,   etc.   v.   Rio 

Tinto  Co.— [1918]  2  A.  C.  260  1918D  583 
Viosca    V,    Landfried — 140    La. 

609     1918C  1193 

Virginian  R.  Co.,  Harper  v. — 76 

W.   Va.    788    1918D  1081 

Virginia  R.,  etc.  Co.  v.  O'Flaher- 

ty— 118  Va,  749   1918D     471 

Vizard  Investment  Co,,  Fields  v. 

—168    Ky,    744    1918D     336 

Vogt  v.  Louisville— 173  Ky.  119  1918E  1040 
VoUmer- Clearwater  Co.,  McKee- 

han  v.— 30  Idaho  505    1918E  1197 

Wagner,  Weekly  v.— 76  W.  Va, 

236     1918E     630 

Walker,  Bolton  v.— 197  Mich.  699  1918E  1007 
AValker  v,  Richmond— 173  Ky,  26  1918E  1084 
Waller  v.  Citv  of  New  York  Ins. 

Co.— 84  Oregon  284   1918C     139 

Walsh,  Ahlgren  v.— 173  Cal,  27  1918E  751 
Walsh  v,  Boston  Elevated  R,  Co, 

—222   Mass.   275    1918C     443 

Walsh  V.  Keith— 196  Mich.  42  . .  1918E  217 
Walsh's  Estate— 196  Mich.  42  1918E  217 
AVasco  County  v.  New  England 

Equitable  Ins,  Co, — 88  Oregon 

465     1918E     656 

Washington,    etc.    Ry.,    Carr    v. 

—44  App.  Cas.  (D.  C.)  533  1918D  818 
Washington  Safetv  Deposit  Co., 

Schaefer  v.— 281  111.  43    1918C     906 

Washington,  Yazoo,  etc.  R.  Co. 

V.  —113  Miss.  105 1918E     813 

Watertown,    Cleveland    v. — 222 

N.  Y.  159  1918E     574 

Weadock  v,  Champe — 193  Mich. 

553     191,8C     874 

Webster,    Bodwell    v.— 98    Neb, 

664 1918C     624 

Webster    v.    Boyer — 81    Oregon 

485     1918D     988 

Weeklv,  Jeffreys   v, — 81   Oregon 

140"^  1918D     690 

Weekly  v.  Wagner— 76  W,  Va. 

236     1018E     630 

Weeks,  Paulson,  v.— 80  Ore,  468  1918D  741 
Weigle,  State  ex  rel.  Sperry,  etc. 

Co.    v.— 166   Wis,    613    1918D     707 


14 


ANK  CAS.  DIGEST  (1918C-1918E). 


Weil,   Standard  Brewing  Co.  v. 

—129    Md.    487 1918D  1143 

Weisman  v.  New  York — 210  N. 

Y.    178    1918E  1023 

Welch  V.  Hannie— 112  Miss.  79  1918C  325 
Welch,  Insurance  Co.  v. — 49  Okla. 

620     1918E     471 

Welles,         Portuguese-American 

Bank  v.— 242  U.  S.  7  1918D     643 

Wellraan,  State  v.— 102  Kan.  503  1918D  1006 
Wells  V.  Hansen— 97  Kan.  305  . .  1918D  230 
Westerfield,    Lake    County   v. — 

273  111.  124   1918E     102 

Western  Union  Tel.  Co.  v.  Boi- 
ling—120  Va.  413    1918C  1036 

Western  Union  Tel.  Co.  v.  Lee 

—174  Ky.  210    1918C  1026 

Western  Union  Tel.  Co.,  Pfiester 

v.— 282  111.  69    1918D     738 

Weston  V,  Dahl— 162  Wis.  32  . .  1918C  922 
West,  State  ex  rel.  Jones  v. — 139 

Tenn.    622     1918D  749 

West    Virginia    Pulp,    etc.    Co., 

Lewis  v.— 76  W.  Va.  103 1918D     754 

Wheeler,  Grouse  v.— 62  Colo.  51  1918E  1074 
Whitaker,  State  v.— 103  S.  Car. 

210    1918E     467 

White    V.    Ainsworth — 62    Colo. 

513     1918E     179 

W.     H.    Roberts    Lumber     Co., 

Connecticut  Fire  Ins.  Co.  v. — 

119  Va.  479  1918E  1045 

Wiggins   V.    Industrial  Accident 

Board— 54  Mont.  335 1918E  1164 

Willamette  Valley  Lumber  Co., 

Critea  v.— 87  Oregon  10 1918D  1050 

Williams,  Bordwell  v.— 173  Cal. 

283    1918E     358 

Williamsburg  City  Fire  Ins.  Co., 

Hankins  y.— 96  Kan.  706   ...  1918C     135 


Williams   v.   Nelson — 228   Mass. 

191    1918D     638 

Williams  v.  Sandles— 93  Ohio  St. 

92     1918D     154 

Williams      v.      State      ex      rel. 

Schwarz— 197   Ala.  40    19MD     869 

Will's  Adm'r  v.  George  Wiede- 
mann  Brewing   Co. — 171    Ky. 

681     1918E      62 

Wilmore,  Neely  v.— 124  Ark.  460  1918D  77 
Wilson    V.    Freeman — 108    Tex. 

121    1918D  1203 

Wilson  V.  Grand  Trunk  Ry.  Ins. 

etc.  Soc— 78  N.  H.  210  ....  1918E  1191 
Wilson,  Murphy  v. — 37  N.  Dak. 

300     1918E  1101 

Wilson  V.  Robinson — 21  N.  Mex. 

422     1918C       49 

Wilson,  State  v.— 141  La.  404  1918D  789 
Wisconsin  Zinc  Co.  v.  Fidelity, 

etc.   Co.— 162  Wis.  39    1918C     399 

Wolcott,    Peninsula    Bank    v. — 

232  Fed.   68    1918C  477 

Wolfenberger    v.    Hubbard — 184 

Ind.  25   1918C       81 

Woodruff,  Black  v.— 193  Ala.  327  1918C  969 
Woodward,  Baxter  v. — 191  Mich. 

379     1918C     946 

Woodward  v.  Blake— 38  N.  Dak. 

38     1918E     552 

Wren  v.  Dixon— 40  Nev.  170  . .   1918D  1064 

Yazoo,  etc.  R.  Co.  v.  Washington 

—113  Miss.  105    1918E     813 

York  Farmers  Colonization  Co., 

John    A.    Marshall    Brick    Co. 

v.— 54  Can.  Sup.  Ct.  569  ...  1918C  1013 
York  Shore  Water  Co.  v.  Card — 

116    Me.    483    1918D     945 

Yount  V.  Hoover— 95  Kan.  752  . .   1918C     148 


DIGEST 


OF 


CASES  REPORTED  IN  ANN.  CAS. 


VOLUMES  1918C--1918E 


ABATEMENT  AND  REVIVAI.. 

See  Actions  and  Pboceedings. 

ABOUT. 

Meaning  of  term,  see  Woeds  aito  Pheases, 
1. 

ABSTRACT  OF  TITLE. 

1.  Liability  of  abstractor — Negligence  in 
making  search. — Ordinary  care  and  diligence 
on  the  part  of  an  abstractor,  in  performing 
the  work  for  which  he  has  been  employed, 
require  him  to  avail  himself  of  every  facility 
at  hand  in  order  to  furnish  his  client  an 
accurate  and  complete  abstract  of  the  records. 
For  a  failure  so  to  do,  he  will  be  liable  per- 
sonally and  upon  his  bond.  Crook  v.  Chilvers 
(Neb.)  1918E-90.  (Annotated) 

2.  The  provisions  in  section  5623,  Uev.  St. 
1913,  which  require  the  register  of  deeds  to 
keep  general  grantor  and  grantee  indexes  of 
deeds  and  mortgages,  and  the  provisions  in 
section  5629,  which  make  it  the  duty  of  the 
register  of  deeds,  on  receiving  any  conveyance 
or  instrument  affecting  realty,  to  cause  such 
conveyance  or  instrument  to  be  entered  upon 
a  numerical  index  immediately  after  filing 
the  same,  are  intended  as  checks,  one  upon 
the  others,  to  insure  accuracy  in  ascertaining 
the  state  of  the  records  as  to  titles  to  real 
estate,  and  an  abstractor  is  not  justified  in 
relying  solely  upon  any  one  to  the  exclusion 
of  the  others.  Crook  v.  Chilvers  (Neb.) 
1918E-90.  (Annotated) 

3.  When  an  abstractor  relies  upon  the 
numerical  index  alone  to  refer  him  to  all  en- 
tries upon  the  records  affecting  the  title  to 
the  property  which  he  is  examining,  he  does 
so  at  his  peril,  unless  the  one  employing  him 
-agrees  that  in  the  making  of  such  abstract 


15 


he  may  rely  upon  said  index  alone  far  such 
information;  and  in  such  case  his  certificate 
to  the  abstract  must  clearly  and  unequivocal- 
ly show  his  limited  employment  and  investi- 
gation by  reciting  that  such  was  the  method 
pursued  by  him  in  making  the  abstract. 
Crook  V.  Chilvers  (Neb.)   1918E-90. 

(Annotated) 
4.  Extent  of  liability. — Any  person  en- 
gaged in  the  business  of  compiling  abstracts 
of  title  to  real  estate  in  this  state,  who 
furnishes  an  abstract  to  one  by  whom  he  is 
employed  for  that  purpose,  is  chargeable  with 
knowledge  of  the  use  to  which  such  abstract 
will  in  all  probability  be  devoted,  and  he 
thereby  becomes  liable  imder  section  6277, 
Rev.  St.  1913,  for  all  damages  sustained  by 
reason  of  any  defect  in  such  abstract,  not 
only  to  the  party  who  employed  him  to 
make  it,  but  also  to  all  persons  who  may  deal 
with  such  party  in  reliance  upon  the  abstract 
so  furnished.  Crook  v.  Chilvers  (Neb.) 
1918E-90.  (Annotated) 


ABUTTING   OWNEBS. 

See  Adjoining  Landownebs. 

ACCELERATION. 

Of  vesting  of  remainder,  see  Reoiaindebs,  3. 

ACCIDENT  INSURANCE. 

See  iNStTBANCE;   Life  iNSUBANcfi. 

1.  Permanent  disability. — An-  insured  ad- 
vanced in  years,  practically  blind,  lame,  and 
a  paralytic,  is  held  to  be  permanently  dis- 
abled under  an  insurance  policy.  Eminent 
Household  of  Columbian  Woodmen  v.  Bunch 
(Miss.)  1918C-110. 


16 


AXA^  CAS.  DIGEST   (1918C-1918E). 


2.  The  fact  that  an  insured  resigned  his 
office  of  justice  of  the  peace  should  not  de- 
feat his  claim  or  impeach  his  testimony  as 
to  permanent  disability;  it  being  his  right 
as  well  as  his  duty  to  resign  if  he  could  not 
perform  the  main  duties  of  the  office. 
Eminent  Household  of  Columbian  Woodmen 
V.  Bunch  (Miss.)  1918C-110.  (Annotated) 

3.  Part  continuance  of  insurance  after  ac- 
cident.— A  policy,  giving  half  the  total  insur- 
ance for  the  loss  of  an  eye  with  "the  option 
to  continue  this  covenant  in  force  till  death" 
when  the  other  half  will  be  paid,  does  not 
convert  the  remainder  into  an  ordinary  life 
policy  and  prevent  recovery  for  further  ac- 
cidents. Eminent  Household  of  Columbian 
Woodmen  v.  Bunch   (Miss.)    19180-110. 

(Annotated) 

4.  Where  insured  receives  indemnity  for 
loss  of  an  eye  and  broken  leg,  he  may  still 
recover  for  permanent  disability,  although 
the  lost  eye  and  broken  leg  contribute  to  the 
permanent  disability.  Eminent  Household 
of  Columbian  Woodmen  v.  Bunch  (^Miss.) 
1918C-110. 


ACCOMMODATION  MAKER. 

Extension   of   time   to   joint   maker  as   dis- 
charge, see  Bills  and  Notes,  1,  2. 


ACCOMPLICES. 

See  Criminal  Law,  2. 

Corroboration  of  accomplices  in  prosecution 
for  homicide,  see  Homicide,  11. 


ments  specified  in  defendant's  bill  of  offsets 
were  properly  applicable  to  other  items  of 
plaintifl's  account,  not  covered  by  its  liiil  of 
particulars,  under  a  proper  construction  of 
section  4,  chapter  126,  serial  section  4824, 
Code  1913.  Parkersburg,  etc.  Sand  Co.  v. 
Smith   (W.  Va.)   1918E-449. 

3,  Verified  statement  as  prima  facie  evi- 
dence.— An  action  for  the  balance  of  agieed 
price  of  a  course  of  instruction  b}'  corre- 
spondence, payable  in  instalments,  is  within 
Revisal  1905,"  §  1625,  as  amended  by  Pub. 
Laws  1917,  c.  32,  providing  that,  in  an  action 
on  "an  account  for  goods  sold  and  delivered, 
for  services  rendered,  and  labor  performed,"' 
a  verified  itemized  statement  of  the  account 
shall  be  admissible,  and  deemed  prima  facie 
evidence  of  its  correctness.  La  Salle  Exten- 
sion University  v.  Ogburn  (N.  C.)  191 8C- 
887. 

4.  Revisal  1905,  §  1625,  as  amended  by 
Pub.  Laws  1917,  c.  32,  declaring  a  verified 
itemized  statement  sued  on  admissible  as 
prima  facie  evidence  of  its  correctness,  ap- 
plies in  a  trial  subsequent  to  the  act  tak- 
ing effect.  La  Salle  Extension  University 
V.  Ogburn  (X.  C.)  1918C-887. 

•'■'-  awA 

ACCRETIONS. 

Before  conveyance  as  passing  with  land,  see 

Deeds,  6. 
Right    as    to    accretions,    see    Watebs    and 

Watebcoubse-s,  4-6. 


ACKNOWLEDGMENTS. 


ACCOUNTS  AND  ACCOUNTING. 

Account  books  as  evidence,  see  Evidence,  23. 

Accoimting  between  partners,  see  Pabtnek- 
.SHip,  6-8. 

Accounting  by  executor,  see  Executors  and 
Administbatobs,  15, 

Accounting  .  by  trustee,  see  Tbusts  and 
Tbustees,  33,  34. 

Assignment  to  mortgagee  as  collateral  se- 
curity, see  Chattel  Mobtgages,  7,  8. 

Compromise  of  items  of  account,  see  CoM- 
pbomi.se,  1. 

Copy  of  account  as  admission,  see  Admis- 
sions   and   Declabations,   2. 

Right  to  accounting  for  profits  of  purchaser 
in  suit  by  state  to  cancel  deeds  to 
school  lands,  see  Public  Lands,  21. 

Suit  against  public  officer  for  accounting, 
see  Public  Officebs,  13,  14. 

1.  Sufficiency  of  complaint. — A  complaint 
deolaring  upon  a  stated  account  that  defend- 
ant promised  to  pay  the  amount  found  due 
upon  a  setjtlement  is  sufficient  after  verdict 
or  judgment.  Smith  v.  Dwight  (Ore.) 
1918'D-563. 

2.  Necessity  of  pleading  counter  offsets. — 
In  an  action  on  an  account,  accruing  to 
plaintiff  under  certain  contracts,  it  is  error 
to  permit  plaintiff,  in  the  absence  of  counter 
offsets  filed  by  him,  to  prove  that  the  pay- 


Necessity  for  acknowledgment  of  lease,  see 
Landlord  and  Tenant,  1. 

Necessity  for  acknowledgment  of  sherifTs  ta.x 
deed,  see  Taxation,  41. 

Necessity  of  acknowledgment  by  wife  to  con- 
tracts relating  to  land,  see  Husband 
AND  Wife,  1.  2,  15,  16. 

1.  Effect  of  defective  acknowledgment. — 
Under  Revisal  1905,  §  2107,  providinir  that 
no  contract  between  a  husband  and  wife  dur- 
ing coverture  shall  be  valid  as  to  any  part 
of  the  wife's  realty  for  a  longer  time  than 
three  years  unless  in  writing  and  duly  proved 
as  required  for  conveyances  of  land,  and  un- 
less upon  the  examination  of  the  wife  apart 
from  her  husband,  as  required  in  the  probate 
of  deeds  by  femes  covert,  it  shall  appear  to 
the  satisfaction  of  the  officer  that  the  wife 
freely  executed  such  contract  and  freelj-  con- 
sented thereto  at  the  time  of  her  separate 
examination,  and  that  the  same  is  not  unrea- 
sonable and  injurious  to  her,  where  the  cer- 
tificate of  probate  filed  with  a  wife's  deed 
lacks  a  finding  by  the  officer  taking  the  pro- 
bate that  the  conveyance  was  not  unreason- 
able and  not  injurious  to  the  wife,  such  deed 
is  not  valid  to  affect  her  realty.  Butler  v. 
Butler   (N.  C.)   1918E-638.  (Annotated)  ^ 

2.  Trivial  defects. — A  certificate  of  ac- 
knowledgment will  not  be  considered  defec- 
tive  if   there    has   boen   a    substantial   com- 


ACTIOXS,  ETC.— AUJOIXIXG  LANDOWNERS. 


17 


pliaijce  with   the  law.     Krichevsky  v.  Hirsh- 
uiit    (Del.)    1918C-34.3. 

3.  Resort  to  instrument  in  aid  of  cer- 
tificate.— Resort  may  be  had  to  a  deed  to 
support  the  sufficiency  of  the  certificate  of 
acknowledgment  thereof.  Kirchevsky  v. 
Hirshout  (Del.)  1918C-345.  (Annotated) 

4.  A  certificate  of  acknowledgment  to  a 
deed  executed  by  Mary  M.,  certifying  that 
"Catherine  !M.,  party  to  this  indenture*'  ac- 
knowledged the  deed,  is  suflficient  where  the 
notary  public  who  certified  to  the  acknowl- 
edgment was  one  of  the  attesting  witnesses 
to  the  signing  and  sealing  of  the  deed  by 
Mary  M.,  thus  indicating  that  the  word 
■"Catherine"'  was  a  clerical  mistake,  since  the 
certificate  is  sufficient  if  it  appears,  with 
reasonable  certainty  from  the  certificate  and 
deed  considered  together,  that  the  grantor  in 
fact  acknowledged  the  instrument.  Krichev- 
sky  V.   Hirshout    (Del.)    1918C-345. 

(Annotated) 

5.  If  such  acknowledgment  is  defective,  it 
is  cured  by  21  Del.  Laws.  e.  110.  §  1,  provid- 
ing that  the  record  of  any  deed  dated  prior 
to  January  1,  189.5.  which  was  duly  signed 
and  sealed  by  the  grantors  notwithstanding 
such  deed  had  not  been  properly  acknowl- 
edged or  the  acknowledgment  had  not  been 
taken  and  certified  in  conformity  with  law, 
shall  be  and  thereby  is  made  valid  and 
effectual  in  law  or  by  later  statutes  of  like 
import.  Kirchevsky  v.  Hirshout  (Del.) 
1918C-345. 

6.  Subsequent  annexation  of  certificate.— 
Where  a  justice  of  the  peace,  in  making  a 
certificate  of  probate  to  a  wife's  conveyance 
of  realty  to  her  husband,  omitted  to  state, 
as  required  by  Revisal  1905,  §  2107,  that  the 
conveyance  was_  not  unreasonable  and  not 
injurious  to  the  wife,  and  where,  in  an  at- 
tempt to  rectify  the  omission  nearly  three 
years  later  and  after  the  wife's  death,  a 
second  certificate  Avas  procured  from  the  jus- 
tice, reading  in  part  that  he  further  cer- 
tified that,  "upon  said  examination,  and 
upon  a  careful  examination  of  the  facts,  caus- 
ing the  said  execution,  it  doth  appear  to 
my  satisfaction  that  the  said  [wife]  freely 
executed  the  said  deed  and  freely  consented 
thereto,  at  the  time  of  her  said  separate  ex- 
amination, and  that  the  said  conveyance  is 
not  unreasonable  or  injurious  to  her,  the  said 
[wife],  which  said  conclusion  I  hereby  cer- 
lifj-  as  having  been  duly  and  carefully  made 
concerning  all  the  facts  surrounding  the  exe- 
cution and  the  cause  thereof,"  such  new  cer- 
tificate is  insufficient  to  validate  the  deed, 
as  not  merely  rediicing  to  writing  in  the 
form  of  a  certificate  his  prior  official  act,  as 
the  justice  did  not  confine  the  certificate  and 
adjudication  to  the  examination  of  the  wife 
separate  and  apart  from  her  husband,  but 
relied  also  on  an  examination  of  all  the  facts 
surrounding  the  execution  of  the  deed,  with- 
out stating  that  he  ascertained  such  facts 
on  the  examination,  concluding.  "It  doth  ap- 
pear to  my  satisfaction  that  the  said  con- 
veyance is  not  unreasonable  or  injurious  to 
her."     Butler  v.  Butler   (X.  C.)   1918E-638. 

Ann.  Cas.  Dig.  1918C-E.— 2. 


ACTIONS  AND  PROCEEDINGS. 

See  Dismissal  axd  Xoxsuit;  Limitatiox 
OF  Actions  ;   Parties  to  Actions. 

Action  for  money  had  and  received,  see  As- 
sumpsit, 1-5. 

Injunction  on  groiuid  of  other  action  pend- 
ing, see  Ixjuxctions,  4. 

Joint  or  several  action  against  persons  lia- 
ble for  slander,  see  Libel  and  Slander, 
31-35. 

Satisfaction  of  judgment  for  libel  as  barring 
suit  against  persons  jointly  liable,  see 
Libel  and  Slander,  34.  35. 

1.  Abatement — Dissolution  of  corporate  de- 
fendant.— The  abatement  of  a  suit  pending 
against  a  corporation  on  appeal  when  such 
corporation  was  dissolved  was  prevented  by 
the  provisions  of  Tex.  Rev.  Stat.  1911,  art. 
1206.  that  upon  dissolution  of  a  corpora- 
tion the  president  and  directors  shall  be  trus- 
tees of  the  creditors  and  stockholders,  with 
full  power  to  settle  its  affairs,  and  in  the 
name  of  such  corporation  to  collect  all  debts, 
compromise  controversies,  and  maintain  or 
defend  judicial  proceedings,  and  that  the 
existence  of  everj'  corporation  may  be  con- 
tinued for  three  years  after  its  dissolution, 
for  the  purpose  of  enabling  those  charged 
with  the  duty  to  settle  its  affairs.  Pease 
V.  Rathbun-Jones  Engineering  Co.  (U.  S.) 
1918C-1147. 


ADEQUATE  REMEDY  AT  I,AW. 

Denial  of  injiuiction  where  adequate  remedy 
at  law,  see  Injunctions,  9. 


ADJOINING  LANDO^VNERS. 

Right  of  abutting  owner  to  maintain  suit  to 
prevent  misuse  of  park,  see  Parks  and 
PiBLic  Squares,  1, 

Right  of  city  to  indemnity  from  abutting 
owner  against  judgment  recovered  for 
injuries  to  pedestrian  resulting  from  icy 
condition  of  sidewalk,  see  Streets  and 
Highways,  16,  17. 

1.  Party  walls — Creation  of  right  by  im- 
plication.— A  sale  by  the  owner  of  two  btiild- 
ings.  having  party  wall  rights  in  the  divid- 
ing wall,  of  one  of  them,  passes  the  title 
subject  to  the  right  of  the  one  retained  to 
the  use  of  the  wall  as  a  partv  wall.  Weadoek 
V.  Champe   (Mich.)    1918C-874. 

2.  An  option  on  the  Eagle  Block,  it  and 
an  adjoining  block  being  separated  by  a 
twelve-inch  Avail  into  Avhich  the  joists  of 
both  entered  and  Avhich  had  been  used  by 
both  as  a  party  wall,  is  for  the  building  and 
land  on  Avhich  it  stands  together  with  party 
Avail  rights,  Weadoek  v.  Champe  (Mich,) 
1918C-874.  (Annotated) 

3.  Creation  of  rights  by  prescription. — A 
division  Avail  betAveen  two  buildings,  having 
for  the  period  of  limitations  been  used  for 
support  of  both  buildings,  becomes' in  effect 
a  party  wall,  Avhether  or  not  originally 
constructed  as  such,  and  Avithout  any  express 


18 


Aim.  CAS.  DIGEST  (1918C-1918E). 


agreement  by  the  owners  of  the  buildings. 
Weadock  v.  Champe  (Mich.)  19180-874. 


ADJOURNMENT. 

See  Justices  of  the  Peace,  2;  Tbial,  1. 

ADMINISTRATORS. 

S«e  EzECUTOBS  AND  Administbatobs. 

ADMISSIONS    AND    DECLARATIONS. 

1.  Self-serving  Declarations,  18. 

2.  Admissions  and  Declarations  against  In- 

terest,  18. 

3.  Person  by  Whom  Made: 

a.  Insured,  18. 

b.  Principal,  18. 

4.  Manner  of  Making: 

a.  Admission  by  Silence,    18. 

b.  Admissions  in  Pleadings,  19. 

c.  Admission  in  Offer  to  Compromise,  19. 

d.  Res  Gestae,  19. 

5.  Explaining  and  Contradicting  Declarations, 

19. 

See  Dying  Declabations. 

Admission  by  demurrer,  see  Pleading,  11, 
12. 

Coroner's  verdict  sent  to  insurer  at  his  re- 
quest as  admission  by  plaintiff,  see  Life 
Insubance,  13. 

1.  Self-serving  Declarations. 

1.  Letter. — ^A  letter  which  a  minister,  sued 
for  refusing  communion  to  a  member,  at- 
tempted to  hand  to  her  before  the  commu- 
nion began,  forbidding  her,  till  she  did  a 
certain  thing,  to  partake,  is  not  in  the 
nature  of  a  self-serving  declaration.  Carter 
v.  Papineau  (Mass.)  1918C-620. 

2.  Admissions  and  Declarations  against  In- 
terest. 

2.  Copy  of  account. — ^Where  a  copy  of 
an  account  is  admitted  to  be  correct  by  a 
party  whose  admissions  are  binding,  such 
copy  is  admissible  as  part  of  the  admitted 
transactions,  and  whether  or  not  the  books  on 
which  the  account  was  based  were  accurately 
kept  is  immaterial.  Scovill  Mfg.  Co.  v. 
Cassidy  (111.)   1918E-602. 

3.  Person  by  Whom  Made. 

a.  Insured. 

3.  Declarations  of  insured  are  admissible 
against  the  beneficiary  under  mutual  benefit 
insurance.  Armstrong  v.  Modern  Woodmen 
of  America   (Wash.)   1918E-263. 

4.  In  suit  on  a  fraternal  benefit  life  policy, 
the  testimony  of  a  nurse  stating  an  admis- 
sion by  the  decedent  that  an  abortion,  which 
was  a  breach  of  the  policy,  was  the  cause  of 
her  last  sickness,  is  admissible.       Gilchrist 


V.  Mystic  Workers,  etc.   (Mich.)    1918C-756. 

5.  In  an  action  by  a  widow,  the  bene- 
ficiary named  in  a  policy  of  accident  insur- 
ance, defended  under  a  provision  of  the 
policy  on  the  ground  of  the  insured's  sui- 
cide, excepted  from  the  risks,  admissions  by 
the  insured  against  his  interest  in  respect 
to  his  suicidal  intent  made  while  he  had  an 
interest  in  the  policy,  and  while  the  bene- 
ficiary had  no  vested  interest  therein,  are 
admissible  against  her  in  her  suit  on  the 
policy.  Rosman  v.  Travelers  Ins.  Co.  (Md.) 
19180-1047.  (Annotated) 

6.  In  such  action  statements  of  the  in- 
sured to  physicians,  not  declaring  that  he  had 
taken  bichloride  tablets  with  suicidal  intent, 
are  admissible;  as  it  is  a  fact  for  the  jury, 
in  connection  with  the  tardiness  of  his  dis- 
closure as  to  what  he  had  taken  after  his 
repeated  denials  that  he  had  taken  anything. 
Rosman  v.  Travelers  Ins.  Co.  (Md.)  1918C- 
1047.  (Annotated) 

b.  Principal. 

7.  Statements  or  admissions,  to  be  compe- 
tent against  guarantors,  should  be  made  dur- 
ing the  continuance  of  the  interest  involved, 
and  not  after  that  interest  has  ceased. 
Scovill  Mfg.  Co.  V.  Cassidy  (111.)   1918E-602. 

8.  Generally,  where  the  declarations  or  ad- 
missions of  the  principal  are  made  in  the 
course  of  the  performance  of  the  business  for 
which  guarantor  is  bound,  they  are  evidence 
against  guarantor,  but  his  subsequent  dec- 
larations, having  no  direct  connection  with 
his  acts  in  the  business  guaranteed,  will  not 
bind  the  guarantor.  Scovill  Mfg.  Co.  v. 
Cassidy    (111.)    1918E-602. 

9.  In  a  suit  on  guaranty  of  a  coporation's 
indebtedness,  admissions  as  to  the  amount 
owed  by  the  corporation  to  the  guarantee, 
made  by  the  president  and  general  manager 
in  charge  of  the  corporation's  business,  in 
the  regular  course  of  the  business,  and  being 
a  part  of  the  transactions  and  business  be- 
tween the  guarantee  and  the  corporation  to 
which  the  guaranty  contract  applied,  were 
competent  as  to  such  amount  against  the 
guarantors,  although  made  when  the  corpora- 
tion was  insolvent  to  the  knowledge  of  the 
parties,  and  shortly  before  the  corporation 
was  tlnown  into  bankruptcy  by  petition  of 
the  guarantee.  Scovill  Mfg.  Co.  v.  Cassidy 
(III.)    1918E-602. 

4  Manner  of  Making. 

a.  Admission  by  Silence. 

10.  Failure  to  deny  testimony. — In  an  ac- 
tion for  deceit  in  the  sale  of  a  decedent's 
goods  by  defendant,  as  administrator, 
through  an  agent,  defendant's  failure  at  a 
former  trial,  at  which  he  was  a  witness,  to 
deny  testimony  given  in  liis  presence  by 
plaintiffs  and  their  witnesses  as  to  state- 
ments made  by  defendant  to  plaintiffs  that 
the  goods  had  been  so  arranged  in  the  stores 
as  to  give  a  fair  representation,  etc..  which 
was  material  to  the  issue,  is  provable  against 
defendant  as  an  admission  bv  silence  and  ac- 


ADMISSIOISTS  AND  DECLARATIONS. 


19 


quiescence.  Harlow  v.  Perry  (Me.)  19180- 
37.  (Annotated) 

11.  Circumstances  not  calling  for  reply,— 
Evidence  that  a  witness  told  a  grantee  what 
the  grantor  said  about  the  deed,  and  that 
the  grantee  did  not  reply,  is  inadmissible  in 
an  action  to  recover  the  land  under  the  deed; 
silence  in  such  a  case  not  implying  assent. 
Campbell  v.  Sigman   (K  C.)   1918C-40. 

(Annotated) 

12.  That  a  defendant  remained  silent  when 
a  clerk  of  codefendant  stated,  in  response  to 
a  question  asked  by  defendant  as  to  whether 
she  had  a  record  of  a  patient's  case,  that  she 
had,  and  that  the  patient  was  the  teacher 
that  defendant  dropped  iodine  in  her  eye  and 
put  it  out,  is  not  admissible  as  an  admission 
against  defendant,  where  the  clerk  was  not 
in  the  actual  presence  of  defendant  or  the 
third  person  hearing  the  conversation,  but 
was  on  the  floor  above,  and  where  the  con- 
versation was  carried  on  either  through  a 
speaking  tube  or  up  the  stairway,  and  where 
codefendant  was  .absent,  and  defendant  could 
consider  his  own  interests  in  the  controversy, 
the  rule  being  that  silence  is  not  an  admis- 
sion where  the  physical  situation  of  the  par- 
ties did  not  demand  a  denial,  or  the  relation- 
ship of  the  person  making  tlie  statement  re- 
lied on  was  an  employee  of  a  third  person 
who  might  have  adverse  interests,  or  where 
the  statement  was  not  one  called  for,  but 
w^as  purely  voluntary  and  impertinent,  and 
where  the  party  remaining  silent,  notwith- 
standing the  statement,  could  consider  his 
own  interests,  and  for  that  reason  alone  de- 
<'line  to  reply.  State  v.  Ellison  (Mo.)  19180- 
1. 

b.  Admissions  in  Pleadings. 

13.  Conclusiveness  in  favor  of  stranger.— 

Although  admissions  contained  in  a  plead- 
ing of  a  party  in  a  former  action  are  admis- 
sible against  him  in  a  subsequent  action  be- 
tween him  and  a  stranger,  the  pleading  does 
not  conclusively  establish  the  facts  alleged 
therein,  and  is  open  to  explanation  or  rebut- 
tal. Albright  v.  Albright  (N.  M.)  1918E- 
642.  (Annotated) 

c.  Admission  in  Offer  to  Compromise. 

14.  Admission  of  independent  facts. — Ad- 
mission by  one  of  the  parties  of  independent 
facts  relating  to  plaintiff's  claim,  though 
made  during  the  colloquium,  or  during  a 
treaty  for  a  compromise,  are  admissible  in 
evidence,  such  admission  not  amounting  to  a 
proposition  of  compromise.  Parkersburg, 
etc..  Sand  Co.  v.  Smith  (W.  V.)  1918E-449. 

(Annotated) 

15.  In  a  suit  for  damages  from  misrepre- 
sentations as  to  the  acreage  of  land  leased, 
it  is  error  to  exclude  evidence  as  to  a  state- 
ment of  fact  made  by  the  lessors  at  the  time 
of  negotiations  with  reference  to  the  adjust- 
ment of  the  parties'  difiFerences.  While  an 
offer  of  compromise  cannot  be  shown  as  being 
an  admission  of  the  party  making  the  offer, 
any  statement  of  fact  made  by  him  as  such 
may  be  proved  as  an  admission,  though  made 


during    the    discussion    of    the    compromise. 
McNeer  v.  rjrfleet    (Miss.)    1918E-436. 

(Annotated) 

d.  Res  Gestae. 

16.  Statement  of  insured  in  last  illness. — 
In  suit  on  a  fraternal  benefit  life  policy, 
testimony  of  alleged  statements  of  decedent 
made  by  her  to  her  physicians  and  to  one  of 
them  in  the  presence  of  a  nurse  during  her 
last  illness  relating  to  the  cause  thereof  is 
not  admissible ,  as  part  of  the  res  gestae. 
Gilchrist  v.  Mystic  Workers',  etc.  (Mich.) 
19180-756. 

17.  Declaration  at  time  of  sale. — In  an 
action  for  deceit  in  the  sale  of  a  stock  of 
goods  by  defendant,  the  declaration  of  the 
agent  who  sold  for  defendant  at  the  time 
of  sale  in  reference  to  the  condition  of  the 
goods  is  admissible  as  part  of  the  res  gestae 
accompanying  the  act  of  sale.  Harlow  v. 
Perry  (Me.)  19180-37. 

18.  Declarations  of  victim  of  homicide. — 
On  a  trial  for  murder,  declarations  of  the 
deceased  made  under  such  circumstances  as 
will  raise  the  reasonable  presumption  that 
they  are  the  spontaneous  utterances  of 
thought  created  by  or  springing  out  of  the 
homicidal  act,  and  made  so  soon  thereafter 
as  to  exclude  the  presumption  that  they  are 
the  result  of  premeditation  and  design,  and 
without  knowledge  of  which  the  principal 
fact  might  not  be  properly  understood,  are 
admissible  as  part  of  the  res  gestae.  More- 
head  V.  State  (Okla.)    19180-416. 

19.  Declarations  by  a  person  whose  throat 
was  cut,  and  windpipe  severed,  and  there- 
fore speechless,  made  by  signs  in  the  presence 
of  the  defendant  a  few  minutes  after  the 
wound  was  inflicted  under  circumstances  that 
excluded  the  presumption  that  they  were  the 
result  of  premeditation  and  design  are  ad- 
missible as  a  part  of  the  res  gestae.  Poling 
V.  State   (Okla.)   1918E-663. 

20.  Declaration  of  third  person  injured  in 
altercation. — Where  a  third  person  fatally 
wounded  by  the  accused's  victim  stated  after 
the  fight  that  he  wap  dying,  and  then  in  re- 
sponse to  a  question  said  that  the  accused's 
victim  shot  him  before  the  accused  fired,  it 
is  held  that  his  statement  was  inadmissible 
as  part  of  the  res  gestae.  Holland  v.  State 
(Ark.)   19180-578. 

5.  Explaining  and  Contradicting  Declarations. 

21.  Entire  conversation  where  part  is  in- 
troduced.— Where  contestant  of  a  will  puts 
in  evidence  a  conversation  with  the  pro- 
pounder  to  the  effect  that  the  latter  admit- 
ted the  paper  offered  was  not  a  valid  will, 
as  an  admission  by  the  propounder,  the 
latter  may  give  the  entire  conversation  in 
explanation.  In  re  Clodfelter  (N.  0.)  1918E- 
281. 

22.  In  an  action  against  an  administrator 
for  damages  occasioned  the  purchasers  of 
the  decedent's  goods  sold  for  the  adminis- 
trator by  an  agent,  the  testimony  of  the 
agent  as  to  his  declaration  at  the  time  of 
sale  in  reference  to  the  condition  of  the 
goods,  containing  immaterial  testimony  con- 


,20 


AN^.  CAS.  DIGEST  (1918C-1918E). 


cerning  tlie  value  placed  upon  the  propeity 
by   appraisers,   elicited   because   the    witness 
was   called   upon   to   give   his   entire   conver- ' 
sation  witli  tlie  buvers,  is  admissible.    Har- 
low V.  Perry    (Me.f  1918C-37. 


ADOPTION    OF    CHILDREN. 

Recovery    for    death    of    adopted    child,    see 
Death  by  WRONGFrL  Act,  6. 


ADULTERY. 

Presumption  of  continuation  of  meretricious 
relationship,  see  Evidence,  37. 


ADVANCEMENTS. 

1.  Conversion  of  debt  into  advancement. — 
That  notes  are  taken  by  a  parent  for  sums 
advanced  to  his  children  indicates  that  he  re- 
garded the  sums  as  debts,  but  he  may  con- 
vert them  into  advancements  by  his  will. 
Knight's  Estate  (Pa.)   1918E-211. 

2.  Interest. — Advancements  do  not  bear  in- 
terest of  themselves,  but  only  by  force  of 
the  testator's  intent,  clearly  expressed  in 
the  Avill,     Knight's  Estate   (Pa.)   1918E-211. 

(Annotated) 

3.  Where  a  testator  who  advanced  certain 
sums  to  his  children,  taking  notes  therefor 
provides  in  his  Avill  that  whatever  debts 
might  be  owing  him  at  his  death  should  be 
taken  into  account  in  distributing  the  es- 
tate, the  sums  given  to  the  children  become 
advancements,  and  bear  no  interest,  in  the 
absence  of  a  direction  in  the  will  therefor. 
Knight's  Estate  (Pa.)   1918E-211. 

(Annotated) 


ADVERSE  POSSESSION. 

Deliverj'  of  warranty  deed  by  grantor  whose 
title  rests  on  adverse  possession  as  con- 
veyance of  good  title,  see  Vendor  and 

PUBCHASEE,   13. 

Right  of  person  having  title  by  adverse  pos- 
session to  specific  performance  of  con- 
tract for  sale  of  land,  see  Specific  Peb- 

FOBMANCE,    2. 

1.  Permissive  occupancy  by  grantor. — Evi- 
dence that  plaintiff  received  a  deed  from  de- 
fendant's intestate,  that  the  intestate  lived 
ten  years  after  giving  the  deed,  that  the  ex- 
ecution of  the  deed  was  known  to  all  the 
children  in  interest,  that  the  intestate  paid 
taxes  on  the  land  and  lived  on  the  land,  but 
paid  no  rent,  and  that  he  never  demanded  a 
reconveyance  or  reformation  of  the  deed,  in 
the  absence  of  a  showing  of  undue  influence 
or  fraud,  is  sufficient  to  sustain  plaintiff's 
claim  to  the  immediate  right  of  possession  of 
the  land.  Campbell  v.  Sigmon  (N.  C.)  1918C- 
40. 

2.  Extent  of  possession. — Two  tracts  hav- 
ing a  common  corner,  making  it  possible  to 
step  from  one  to  the  other  without  crossing 


any  other  tract,  are  •'contiguous,"  within 
the  rule  that  adverse  possession  of  one  of 
several  tracts  contiguous  to  each  other,  con- 
veyed by  a  deed,  though  separately  described, 
extends  to  all.  Parsons  v.  Dils  (Ky.)  1918E- 
796.  (Annotated) 


AFFIDAVITS. 

Amendment  of  altidavit  of  merit,  see  Plead- 
ing, 17,  18. 


AGENCY. 

1.  Creation   and   Existence   of   Relation,   21. 
8.  Rights  and  Liabilities  inter  Se: 

a.  Of  Agent  to  Principal,  21. 

b.  Of   Principal   to   Agent: 

(1)  Compensation,  21. 

(2)  Damages    for    Breach    of    Con- 

tract   21. 

(3)  Evidence,    21.  . 

8.  Rights,  Duties  and  Liabilities  as  to  Third 
Persons : 

a.  Authority  of  Agent  in  General: 

(1)  Dut}'  to  Ascertain  Agent's  Au- 

thority,   21. 

(2)  Conveyance  of  Real  Estate,  22. 

b.  Ratification   of  Act   of  Agent,  22. 

c  Notice   to  Agent   as  Xotice   to  Prin- 
cipal, 22. 

See  Attorneys;  Bbokebs;  Factob.s. 

Communications  between  principal  and  agent 
as  privileged,  see  Libel  and  Slander, 
17-20. 

Company  furnishing  fireworks  to  committee 
having  charge  of  Fourth  of  .July  cele- 
bration as  agent  of  committee,  see 
Theaters  and  Amusements,   8. 

Declaration  of  agent  as  admissible  against 
principal,  see  Admissions  and  Declara- 
tions, 17. 

Effect  of  war  on  power  of  attorney  by  alien, 
see  Aliens,  4. 

Insurance  agents  and  brokers,  see  Insur.\nce, 
1-7. 

Joint  liability  of  agent  and  principal  for 
circulating  libel,  see  Libel  and  Slandeb, 
33. 

Liability  of  administrator  for  acts  done  by 
agent,  see  Executors  and  Administra- 
tors, 13. 

Liability  of  agent  for  renting  of  real  prop- 
erty for  injiirics  caused  by  negligenco 
in  care  of  premises,  see  Landlord  and 
Tenant,  9,  10. 

Liability  of  beneficial  association  for  torts 
of  agent,  see  Beneficial  As.'^ociations, 
22. 

Liability  of  corporation  for  tort  of  agent,  see 
Corporation.*!.  6. 

Loss  caused  by  agent's  breach  of  duty  as 
counterclaim  in  suit  by  agent  for  com- 
pensation, see  Set-off  and  Counter- 
claim, 1. 

Nature  of  agency  of  partners,  see  Partner- 
ship, 3. 


AGEXCY 


21 


1.   Creation  and   Existence   of   Relation. 

1.  Automobile  sales  agency  contract. — A 
provision  in  a  contract  for  the  sale  of  motor- 
cars to  a  dealer  for  resale,  whereby  the 
seller  reserves  the  right  to  reapportion  the 
territory  if  in  its  opinion  the  dealer  is  not 
properly  promoting  sales,  is  designed  only 
to  secure  to  the  seller  proper  effort  on  the 
part  of  the  dealer,  and  does  not  warrant 
cajicellation  for  other  reasons.  Northwest 
Auto  Co.  V.  Harmon  (U.  S.)  1918E-4bl. 

(Annotated) 

2.  In  an  action  for  damages  for  breach  of 
a  contract  to  furnish  a  dealer  with  motor- 
cars for  resale,  the  evidence  is  held  to  be  in- 
sutficient  to  warrant  the  seller  in  canceling 
the  contract  on  account  of  any  lack  of  effort 
or  inability,  etc.,  on  the  part  of  plaintiff,  to 
whom  the  contract  was  assigned.  North- 
west Auto  Co.  v.  Harmon  (l^.  S.)  1918E-461. 

(Annotated) 

3.  In  an  action  for  damages  for  breach  of 
contract  to  furnish  a  dealer  with  motorcars 
for  resale,  the  evidence  is  held  to  warrant 
a  finding  that  the  seller  was  not  warranted 
in  canceling  the  contract,  which  had  been 
assigned  to  plaintiff,  on  the  ground  of  plain- 
tiff's inability  to  carry  it  out.  Northwest 
Auto  Co.  V.  Harmon    (U.  S.)    1918E-4(]1. 

(Annotated) 

4.  Where  a  contract  to  furnish  motorcars 
to  a  dealer  for  resale  is  conditioned  upon  tlie 
dealer's  i>ayment  of  a  specified  note,  the  sell- 
er's acceptance  of  payment  in  instalments  is 
binding,  and  precludes  it  from  denying  re- 
sponsibility on  the  ground  that  the  note  was 
not  paid  as  required.  Northwest  Auto  Co. 
V.   Harmon    (U.   S.)    1918E-461. 

(Annotated) 
6.  Power  of  attorney — Revocation.^Where 
parties  relinquishing  lands  within  a  forest 
reservation  to  the  United  States  as  a  basis 
of  lieu  land  selections  sold  their  selections 
and  executed  powers  of  attorney  author- 
izing the  purchasers  to  select  lieu  lands  in 
their  names  and  authorizing  the  sale  of  the 
selected  lands,  such  powers  of  attorney  are 
powers  with  an  interest  and  were  irrevocable 
during  the  lifetime  of  the  grantors.  State 
V.  Hyde  (Ore.)   1918E-688. 

2.   Rights   and   Liabilities   inter   Se. 

a.   Of   Agent   to   Principal. 

6.  Breach  of  duty  by  salesman — Carrying 
side  line. — A  traveling  salesman,  who  en- 
gages to  carry  no  side  line  of  any  nature, 
violates  his  contract  as  matter  of  law  by 
carrying  another  line  of  clothing,  in  addi- 
tion to  defendant's,  though  he  carries  no 
samples  or  catalogue,  and  it  is  error  to  sub- 
mil  the  question  to  the  jury.  Merrimac  Mfg. 
Co.  v.  Bibb   (Ark.)    1918C-951. 

(Annotated) 

7.  In  a  suit  for  commissions  by  a  travel- 
ing salesman  who  had  engaged  not  to  carry 
a  side  line  of  any  nature  whatever,  the  ad- 
mission of  testimony  that  to  cary  a  side 
line  a  salesman  must  have  samples  or  a 
catalogue  of  the  goods  he  is  selling,  and  that 
he  had  none,  is   improper,  a  "side  line,''   in 


commei-cial  usage,  being  a  line  of  goods  sold 
or  business  followed  in  addition  to  one's 
principal  articles  or  occupation.  Merrimac 
Mfg.   Co.   v.   Bibb    (Ark.)    1918C-951. 

(Annotated) 

b.  Of  Principal  to  Agent. 

(1)   Compensation. 

8.  Misconduct  of  servant  as  defense. — 
Where  an  agent  is  guilty  of  fraud,  dishon- 
esty, and  unfaithfulness  in  the  transaction 
of  his  agency,  sucli  conduct  is  a  bar  to  his 
recovery  of  compensation.  Neely  v.  Wil- 
more    (Ark.)    1918D-77. 

9.  Effect  of  appointment  of  guardian  for 
principal. — Where  one  contracts  to  pay  an- 
other a  salary  for  a  fixed  term  of  years  for 
managing  an  estate,  but,  before  the  expira- 
tion of  such  term,  is  made  defendant  in  a 
suit  for  interdiction,  in  which,  by  an  ex 
parte  order  of  court,  an  administrator  pro 
tern  is  appointed  to  manage  the  estate;  and 
the  manager,  under  the  contract,  acquiesces 
in  such  appointment,  and  without  asserting 
any  rights,  assists  the  administrator,  who 
is  subsequently  paid  for  the  management, 
under  a  judgment  obtained  contradictorily 
with  the  former  manager,  who,  by  that  time, 
has  become  the  executor  of  the  deceased 
owner  of  the  estate,  but  who  still  asserts  no 
claim  under  his  contract,  such  manager  can- 
not thereafter  recover  his  salary  for  the  bal- 
ance of  the  term  fixed  by  such  contract. 
Pons's  Succession   (La.)   1918D-939. 

(2)   Damages  for  Breach  of  Contract. 

10.  Where  defendant  broke  a  contract  to 
furnish  motorcars  to  a  dealer  for  resale, 
though  the  dealer  had  made  contracts  for  the 
sale  of  more  than  half  of  the  cars  it  was  to 
receive,  and  could  readily  have  disposed  of 
the  remainder,  the  profits  on  resale  are  so 
reasonably  certain  as  to  be  recoverable  as 
damages.  Northwest  Auto  Co.  v.  Harmon 
(U.  S.)   1918E-461.  (Annotated) 

(3)  Evidence. 

11.  In  an  action  for  breach  of  contract  to 
furnish  motorcars  to  a  dealer  for  resale, 
which  provided  that  it  should  be  subject  to 
the  prior  orders  of  other  dealers,  the  evidence 
is  held  to  be  insufficient  to  show  that  defend- 
ant was  justified  in  failing  to  furnish  cars  as 
agreed  because  of  the  prior  orders  of  other 
dealers.  Northwest  Auto  Co.  v.  Harmon 
(U.  S.)  1918E-4G1.  (Annotated) 

3.  Rights,  Duties  and  Liabilities  as  to  Third 
Persons. 

a.  Authority   of   Agent   in   General. 

(1)   Duty  to  Ascertain  Extent  of  Agent's 
Authoritj-. 

12.  Duty  of  third  person  to  make  in- 
quiry.— Where  one  contracts  with  an  agent 
who  apparently  has  a  limited,  rather  than  a 
general,  authority,  he  is  bound  to  make  in- 
quiry and  ascertain  the  extent  of  the  agent's 


22 


ANN.  CAS.  DIGEST  (1918C-1918E), 


authority  to  act,  for  if  one  has  notice  that 
the  autnority  is  limited,  he  deals  at  his 
peril.  Cauman  v.  American  Credit  Indemnity 
Co.   (Mass.)    1918E-841. 

13.  Apparent  scope  of  authority. — Where 
the  relation  of  principal  and  agent  is  found 
to  exist,  the  principal  is  responsible  for  the 
acts  of  the  agent  within  the  apparent  scope 
of  liis  authority,  as  an  apparent  general  au- 
thority, conferred  on  an  agent  cannot  be  lim- 
ited as  to  third  persons  when  such  limitation 
is  not  known  to  them.  Cauman  v.  American 
Credit  Indemnity  Co.   (Mass.)   1918E-841. 

(2)  Conveyance  of  Real  Estate. 

14.  Effect  of  agent's  deed  as  contract  to 
convey. — ^An  instrument  in  the  form  of  a 
deed  which  has  been  defectively  executed  by 
an  agent  having  authority  to  convey  may 
operate  as  a  contract  to  convey,  and  the 
agent's  authority  may  be  shown  by  parol. 
Robinson  v.  Daughtry    (N.  C.)    1918E-1186. 

b.  Ratification  of  Act  of  Agent. 

15.  Acceptance  of  benefits. — ^Allegations 
in  a  purchaser's  action  that  the  contract  had 
not  been  made  with  defendant  company,  yet 
that  defendant  knew  that  plaintiff  had  made 
the  contract  with  a  certain  person  as  its 
agent,  and  had  relied  upon  his  acts  as  those 
of  the  defendant,  and  had  made  payments 
accordingly,  which  defendant  had  received 
and  applied  to  its  own  use,  stated  a  cause  of 
action  to  recover  the  amount  paid.  Jones 
V.  Ceres  Invest.  Co.    (Colo.)    1918C-429. 

c.  Notice  to  Agent  as  Notice  to  Principal. 

16.  "It  is  the  duty  of  an  agent  to  make 
known  to  his  principal  all  facts  concerning 
the  service  in  which  he  is  engaged  that  come 
to  his  knowledge  in  course  of  his  employ- 
ment, and  this  duty  he  is,  in  a  subsequent 
action  between  his  principal  and  a  third  per- 
son, conclusively  presumed  to  have  performed. 
This  is  the  foundation  of  the  rule,  necessary 
to  the  public  safety,  that  notice  to  an  agent 
in  the  course  of  his  employment  is  notice  to 
his  principal."  Modern  Woodmen  of  Amer- 
ica V.  Colman,  68  Neb.  660.  Modern  Wood- 
men of  America  v.  Berry  (Neb.)  1918D-302. 


AGREED  CASE. 

Stipulation  of  facts  on  appeal,  see  Appeal 
A>'D  Ebbob,  43. 


AUBI. 

Proof,  see  Cbimhtal  Law,  14-20. 

ALIENS. 

1.  Who  are  alien  enemies. — A  native  of 
Austria-Hungary,  with  which  country  the 
United  States  is  at  war,  though  a  resident 
of  North  Carolina,  and  regardless  of  the 
fact  that  he  is  guilty  of  no  act  or  utterance 


unfriendly  to  the  United  States,  and  is  a 
quiet,  law-abiding  laborer,  is  an  alien  enemy. 
Krachanake  v.  Acme  Mfg.  Co.  (N.  C.)  1918E- 
340.  (Annotated) 

2.  A  ten  year  old  child  born  in  Canada  of 
parents  native  to  Austria-Hungary,  residing 
with  his  parents  in  the  United  States,  could 
sue  for  injuries  by  tort  through  his  father 
as  next  friend,  since  the  father  was  not  a 
party  in  the  legal  sense  but  an  officer  ap- 
pointed by  the  court  to  protect  the  interest 
of  the  son,  and  the  United  States  follows  the 
rule  according  to  which  nationality  is  prim- 
arily determined  by  the  place  of  birth. 
Krachanake  v.  Acme  JMfg.  Co  (N.  C.)  1918E- 
340. 

3.  Dissolution  of  partnership  by  war. — 
Where  a  partnership  is  dissolved  by  the  out- 
break of  war,  a  partner  continuing  the  busi- 
ness is  liable  to  the  alien  copartner  for  such 
a  share  of  the  profits  as  represents  his  in- 
terest in  the  firm  property  used  in  continu- 
ing the  business,  though  that  liability  can- 
not be  enforced  until  the  end  of  the  war. 
Stevenson  v.  Aktiengesellschaft  Fur,  etc. 
(Eng.)   1918D-575. 

4.  Effect  of  removal  to  enemy  county. — 
An  irrevocable  power  of  attorney  to  sell  land 
given  by  a  resident  alien  enemy  is  not  rend- 
ered void  by  his  subsequent  removal  to  a 
residence  in  an  enemy  country.  Tingley  v. 
Miiller   (Eng.)    1918C-726.  (Annotated) 

5.  Right  of  alien  enemy  to  sue. — In  view 
of  the  Presidents  ProcTamation  No.  1417,  as 
to  rights  of  Austrian  nationals,  and  the  Trad- 
ing with  the  Enemy  Act  (Act  Cong.  Oct.  6, 
1917,  c.  106,  40  Stat.  L.  411;  1918  Supp. 
Fed.  Stat.  Ann.  846),  defining  an  enemy  as 
a  person  resident  within  the  territory  of  any 
nation  with  which  the  United  States  is  at 
war,  a  native  of  Austria -Hungary  resident 
within  the  United  States  may  sue  for  torts. 
Krachanake  v.  Acme  Mfg.  Co.  (N.  C.)  1918E- 
340.  (Annotated) 

6.  Rules  preventing  certain  enemy  aliens 
from  resorting  to  our  courts  do  not  prevail 
against  a  minor,  the  son  of  a  native  of  Aus- 
tria resident  in  the  United  States,  since  the 
money  recovered  will  be  in  charge  of  a  guar- 
dian appointed  by  the  court,  and  cannot  be 
removed  from  the  state  without  the  court's 
consent  and  so  cannot  be  used  in  aid  of  the 
enemy,  Krachanake  v.  Acme  Mfg.  Co.  (N. 
C.)  1918E-340.  (Annotated) 

7.  Naturalization — ^Application  made  be- 
fore war.— Rev.  St.  §  2171  (6  Fed.  St.  Ann. 
2d  ed.  947),  originally  adopted  at  a  time 
when  the  only  application  for  naturalization 
was  made  in  open  court,  provides  that  no 
subject  of  any  country  with  which  the 
United  States  are  at  war  at  the  time  of  his 
application  shall  be  admitted  to  citizenship. 
Act  June  29,  1906,  c.  3592,  §  4,  34  Stat.  596 
(6  Fed.  St.  Ann.  2d  ed.  959),  requires  the 
applicant  to  make  and  file  a  petition  in  writ- 
ing, and  section  6  (6  Fed.  St.  Ann.  2d  ed. 
975)  provides  that  final  action  thereon  shall 
not  be  had  until  at  least  ninety  days  have 
elapsed  after  filing  and  posting  the  notice 
of  such  petition.  It  is  held  that  the  applica- 
tion is  complete  when  the  petition  is  filed, 
and   the   time  of  filing   the  petition   is   the 


ALIMONY  AND  SUIT  MONEY— ANTENUPTIAL  CONTRACTS.   23 


"time  of  his  application,"  especially  as  sec- 
tion 2171  contains  a  further  provision,  now 
obsolete,  for  the  naturalization  of  alien  en- 
emies entitled  to  naturalization  on  June  18, 
1812,  and  hence  a  German  subject  filing  his 
petition  in  January,  1917,  was  entitled  to 
naturalization,  though  the  hearing  was  not 
had  until  April  6th,  at  which  time  a  state  of 
war  existed.  U.  S.  v.  Meyer  (U.  S.)  1918C- 
704.  (Annotated) 


AUMONT   ANB    STTTT  MONEY. 

See  DrvoBCE. 

1.  Review  of  decree. — ^Where  divorce  ab- 
solutely dissolves  the  marriage  relations,  and 
the  duty  of  support  no  longer  exists,  there 
can  be  no  review  in  the  absence  of  fraud  or 
mistake  of  the  decree  awarding  or  denying 
alimony  unless  warranted  by  statute.  Spain 
V.  Spain   (la.)   1918E-1225. 

2.  Effect  of  decree  of  annulment  on  ac- 
crued rights. — In  a  wife's  action  for  main- 
tenance, wherein  her  husband  cross-com- 
plained for  annulment,  the  provision  of  the 
final  judgment  that  the  wife  was  not  en- 
titled to  recover  from  her  husband  any  pay- 
ment of  alimony  or  any  money  whatsoever 
for  her  maintenance  or  otherwise  merely  ad- 
judicated that  the  wife  should  not  recover 
any  alimony  or .  sum  by  way  of  permanent 
maintenance,  a  necessary  result  of  the  decree 
of  nullity,  and  the  provision  did  not  preclude 
the  wife  from  collecting  any  money  due  her 
under  order  pendente  lite,  made  for  tempo- 
rary support,  etc  Millar  v.  Millar  (Cal.) 
1918E-184. 


AMENDMENT. 

Of  indictment,  see  Indictments  and  Infob- 

MATIONS,    11,   17. 

Of  pleading,  see  Pleading,  16-22. 
Construction   of   amendment  to   statute,   see 

Sta'iutes,  20. 
To  |Jea  in  action  for  slander,  see  I.trf-t.  and 

Slandee,  47. 


AMOUNT  IN  CONTROVERSY. 

Jurisdiction  of  appellate  court  as  governed 
by  amount  in  controversy,  see  Appeal 
AKD  Ebbob,  4-7. 


AMUSEMENTS. 

See  Theatebs  and  Amusements. 

ANCIENT   DEEDS. 

See  Deeds,  3,  14. 
Proof,  see  Evidence,  20. 


ANCILLARY   ADMINISTRATION. 

See  ExECUTOBS  and  Administbatobs,  5-8,  10. 

ANIMALS. 

See  Cabbiebs  of  Live  Stock. 

ANNUITIES. 

See  Tbusts  and  Tbustees;  Wills. 

1.  Election  to  take  capital  sum. — ^Where 
an  absolute  and  unqualified  annuity  is  given 
by  a  will  with  instructions  to  invest  a  sum 
sufficient  to  purchase  the  annuity,  the  an- 
nuitant may  elect  to  take  the  capital  sum, 
instead  of  having  it  invested  for  the  purpose 
of  producing  the  annuity,  since,  if  the  testa- 
tor deemed  it  necessary  to  protect  the  annui- 
tant against  improvidence,  he  could  have  done 
so  through  the  instrumentality  of  a  trust. 
Matter  of  Cole  (N,  Y.)  1918E-807. 

2.  Payment  from  income  or  corpus  of  es- 
tate.— Where  a  will  provided  an  annuity  to 
the  testator's  daughter,  and  the  residuary 
clause  is  expressly  made  subject  to  the  an- 
nuity, although  annuities  are  usually  payable 
out  of  income,  it  being  a  question  of  the  in- 
tention of  the  testator  as  expressed  in  the 
will,  as  another  clause  in  the  will  (ievised 
real  estate  subject  to  the  payment  of  the 
annuity,  the  annuity  should  be  charged  to 
the  principal  of  the  estate.  Sheffield  v. 
Cooke  (R.  I.)  1918E-961. 

3.  Payment  of  taxes. — Taxes  assessed 
against  annuities,  other  than  inheritance 
taxes,  should  be  paid  out  of  the  annuities 
themselves.  Parkhurst  v.  Ginn  (Mass.) 
1918E-982.  (Annotated) 

4.  Where  testator,  who  devised  and  be- 
queathed the  bulk  of  his  property  to  trus- 
tees, directing  them  to  pay  stated  portions  of 
income  to  various  beneficiaries,  and  then  a 
larger  portion  to  a  charity,  declared  that  the 
gifts  and  annuities  to  individuals  should  first 
be  paid  before  there  should  be  any  payment 
to  the  charity,  such  declaration  does  not  show 
that  the  annuities  are  in  all  cases  to  be 
paid  free  of  taxes;  so  taxes  assessed  against 
them  should  be  paid  out  of  the  annuities. 
Parkhurst  v.  Ginn   (Mass.)   1918E-982. 

(AnAp  tated) 


ANSVTER. 

See  Equitt,  1;  Pleading,  5-10. 

ANNULMENT. 

01  marriage,  see  Mabbiage,  9-15. 

ANTENUPTIAL  CONTRACTS. 

See  Husband  and  Wife,  4-6. 


24: 


A^l^.  CAS.  DIGEST   (1918C-1918E). 


ANTI-TRUST  LAW. 

See  Monopolies. 

APPARATUS. 

Construction  of  lease  giving  right  to  remove, 
see   FixTUBEs,   5. 

APPEAL  ANI>  ERROR. 


Right  of  Appeal,  24. 
Jurisdiction    and    Powers    of    Appellate 
Courts: 

a.  In  General,    24. 

b.  Amount  in  Controversy,  25. 

c.  Federal  Courts,   25. 
Appealable  Judgments  and  Orders,  25. 
Parties   to   Appellate  Proceedings,   25. 
Certification  of  Questions,    25. 
Notice  of  Appeal,  25. 

Time  of  Appeal,  2fi. 
Record  on  Appeal: 

a.  In  General,   26. 

b.  Transcript  of  Record,  26. 

c.  Abstract  of  Record,    26. 

d.  Settlement  and  Certification,  26. 
Bill  of  Exceptions,  26. 
Assignments  of  Error,  27. 

Briefs  of  Counsel,  27. 
Examination  of  Case  on  Appeal: 

a.  What  Is  Brought  Up  by  Appeal: 

(1)  In   General,   27. 

(2)  Matters  Not  in  Record,  27. 

(3)  Rulings  on   Evidence,  28. 

b.  Second  Appeal,    28. 

c  Examination  of  Questions  of  Fact: 

(1)  In  General,    28. 

(2)  Verdict   or    Finding   of   Jury, 

28. 

(3)  Findings  of  Court,   28. 

(4)  Direction  of  Verdict  or  Judg- 

ment on  Demurrer  to  Evi- 
dence,   28. 

(5)  Judgment      of      Intermediate 

Appellate  Court,    28. 
d.  Waiver  of  Error,   29. 


9. 

10. 
11. 
12. 


13. 

14. 
15. 


Review  of  Exercise  of  Discretionary  Pow- 
er,  29. 
Presumptions  on  Appeal,  29. 
Reversible   Error: 

a.  Error  Must  Be  Material,    29. 

b.  Error  Must  Be  Prejudicial: 

(1)  Error   in    Admission    of   Evi- 

dence, 30. 

(2)  Exclusion   of   Evidence,   30. 

(3)  Other   Errors   in   Relation  to 

Evidence,    30. 

(4)  Error  in  Instructions,  30. 

(6)  Error    in    Submitting    Ques- 
tion to  Jury,  30. 
C.  Errors  Xot  Available: 

(1)  Questions  Xot  Raised  Below, 

31. 

(2)  Sufficiency    of    Objection    or 

Exception,    31. 


(3)  Errors    Favorable    to    Appel- 

lant, 31. 

(4)  Wrong    Reason     for    Correct 

Decision,  31. 

16.  Decision  or  Judgment  of  Appellate  Court, 

:i2. 

17.  Supersedeas  and  Bond: 

a.  In  general,    .S2. 

b.  Amendment  of  Bond,  32. 

c.  Summary   Judgment    against    Sure- 

ties.   '■>2. 

18.  Costs,  33. 

19.  Rehearing,    33. 

See  Certiobabi. 

Amendment  of  pleadings  on  appeal,  see 
Pleading,  20. 

Cure  of  omission  in  instructions  by  other  in- 
structions, see  Instbuctioxs,  15. 

Effect  of  inotion  for  direction  of  verdict  b? 
both  parties  on  finding  of  court,  see  Veb- 
DICT,  11. 

Modification  on  appeal  of  decree  for  specific 
performance  of  contract  by  railroad  to 
maintain  depot,   see   Specific   Pebfobm- 

AXCE.   13. 

Reappointment  of  guardian  ad  litem  in  ap- 
pellate court,  see  Infants,  3. 

Review  of  finding  in  proceedings  under  Tor- 
rens  Act,  see  Recobding  Acts,  8. 

Review  of  finding  of  industrial  board,  see 
Masteb  axd  Sebvaxt,  26. 

Review  of  pr<  -eedings  in  juvenile  court,  see 
Infants,  13,  14. 

Right  of  appealing  defendant  against  whom 
judgment  has  been  directed  under  super- 
sedeas bond  to  subrogation  against  co- 
defendants,  see  SuBROOATiON,  4. 

Right  of  state  to  appeal  in  divorce  action. 
see  Divorce,  17. 

Scope  of  issues  on  appeal  from  order  admit- 
ting will  to  probate,  see  Wills,  22. 

Trial  de  novo  in  a;!tion  by  stockholder 
against  directors  for  refusal  to  call  for 
unpaid  subscriptions,  see  Corporations, 
31,  .32. 

Use  of  habeas  corpus  as  appeal  or  writ  of 
error,  see  Habeas   Corpus,  1. 

1.  Right  of  Appeal. 

1.  .Waiver.' — That  appellant  accepts  the 
money  assigned  to  him  under  a  judgment  dis- 
solving a  corporation  and  distributing  the 
funds  thereof  will  not  deprive  him  of  his 
right  to  question  the  judgment  so  far  as  it 
dissolves  the  corporation  or  require  that  his 
appeal  be  dismissed.  Thwing  v.  McDonald 
(Minn.)   1918E-420. 

2.  Jurisdiction    and    Powers,   of    Appellate 
Courts. 

a.  In  General. 

2.  Quashing  judgment  of  court  of  inter- 
mediate appeal. — The  supreme  court  has  con- 
stitutional authority  to  quash  a  judgment 
of  the  court  of  appeals  where  the  judgment 
is  the  result  of  a  refusal  by  the  court  of 
appeals   to   follow   the   hist   previous   rulings 


APPEAL  AND  EREOR. 


25 


of  the- supreme  court.    State  v.  Ellison  (Mo.) 
1918C-1. 

3.  Final  jurisdiction  in  criminal  cases.— 
The  constitution  expressly  places  in  the  court 
of  criminal  appeals,  and  not  in  the  supreme 
court,  the  linal  jurisdiction  in  all  criminal 
cases.     Ex  parte  Mode   (Tex.)   1918E-845. 

b.  Amount  in  Conti-oversj'. 

4.  Where  a  judgment  of  the  municipal 
court  is  for  more  than  $1,000,  writ  of  error 
to  the  judgment  of  the  appellate  court,  which 
reversed  that  of  the  municipal  court,  will 
not  be  dismissed  on  the  ground  that  the 
judgment  of  the  appellate  court  did  not  ex- 
ceed .$1,000.  Schaefer  v.  Washington  Safety- 
Deposit    Co.    (111.)    1918C-906. 

5.  Exclusion  of  costs. — ^^Vhere  an  action 
is  for  the  recovery  of  money  only,  the  ques- 
tion whether  the  supreme  court  has  jurisdic- 
tion to  review  the  judgment  at  t^e  instiga- 
tion of  the  party  ordered  to  pay  it  depends 
upon  the  amount,  exclusive  of  costs,  which 
the  appellant  is  required  to  pay.  Shannon 
V.   Abrams    (Kan.)    1918E-.502. 

6.  Aggregation  of  several  causes  of  ac- 
tion.— Under  section  .566  of  the  Civil  Code 
where  the  action  is  for  the  recovery  of  money 
only,  the  right  of  appellant  to  have  his 
cause  reviewed  by  the  supreme  court  depends 
on  tlie  aggi-egate  sum  of  money  which  he  is 
required  by  the  judgment  to  pay.  and  is  not 
affected  by  the  fact  that  the  judgment  is 
only  the  total  of  a  series  of  judgments  on 
separate  counts  no  one  of  which  if  con- 
sidered independently  Avould  be  for  a  sum 
large  enough  to  confer  jurisdiction  for  re- 
view bv  the  supreme  court.  Shannon  v. 
Abrams"  (Kan.)    1918E-502.  (Annotated) 

7.  Where  a  plaintiff  has  acquired  title  to  a 
number  of  outstanding  claims  against  a  de- 
fendant and  his  surety,  and  brings  a  single 
j^ction  thereon,  setting  up  each  claim  in  sepa- 
rately stated  and  numbered  causes  of  action, 
each  one  of  which  is  for  a  sum  of  money 
less  than  $100,  and  Avhere  the  plaintiff  pre- 
vails in  the  action,  and  separate  jiidgments 
are  given  on  each  count,  and  an  aggregate 
judgment  is  awarded  in  his  favor  for  a  sum 
of  money  in  excess  of  $100.  section  566  of 
the  Civil  Co<le  gives  the  defendant  a  right 
of  appeal  to  the  svipreme  court.  Shannon  v, 
Abrams.  (Kan.)   1918E-502.  (Annotated) 

c.  Federal  Courts. 

8.  In  an  action  to  quiet  title  to  a  raining 
claim  and  mill  site  claimed  under  a  United 
States  patent  duly  recorded,  where  the  agreed 
Btatement  of  facts  asserted  defendant's  ad- 
rerse  possession  under  a  certificate  of  tax 
pale,  and  precluded  the  idea  of  plaintiff's 
possession,  the  court's  assertion  that  plaintiff 
had  never  taken  possession  was  within  the 
record,  especially  where  the  judgment  for  de- 
fendant did  not  turn  upon  such  assertion,  and 
a  petition  for  a  writ  of  error  to  the  United 
States  Supreme  Court  on  the  ground  that  the 
court's  opinion  raised  a  federal  question 
would  be  denied.  Wren  v.  Dixon  (Xev.) 
1918D-1064. 


3.  Appealable  Judgments  and   Orders. 

9.  Order  of  intermediate  court — Finality. 
• — Where  a  remittitur  is  tiled  by  plaintiff  in  a 
suit  for  personal  injuries  in  accordance  with 
the  judgment  of  the  court  of  civil  appeals, 
such  judgment  may  be  appealed  from  to  the 
supreme  court  by  defendant  by  petition  for 
writ  of  error;  the  judgment  of  the  court  of 
civil  appeals  having  become  final.  Wilson  v. 
Freeman    (Tex.)    1918D-1203. 

10.  Order  limiting  examination  of  party. 
— An  order  practically  enjoining  all  examina- 
tion of  defendant  under  St.  1913,  §  4096,  pro- 
viding for  the  examination  of  adverse  par- 
ties, is  appealable.  Kuryer  Pub.  Co.  v. 
Messraer   (Wis.)    1918C-778. 

4.  Parties    to    Appellate    Proceedings. 

11.  Right  of  district  attorney  to  appeal 
in  divorce  case. — On  appeal  by  the  district 
attorney  in  a  divorce  suit,  the  record  did  not 
show  that  he  had  been  served  with  sum- 
mons prior  to  the  trial  of  the  suit,  or  that 
he  had  appeared  in  the  suit  as  required  by 
L.  O.  L.  §  1020,  as  amended  in  1911  (Laws 
1911,  p.  126),  and  plaintiff  moved  to  dis- 
miss the  appeal  on  the  ground  that  the  ap- 
pellant had  no  authority  to  prosecute  it.  It 
is  held  that,  in  view  of  the  fact  that  the 
district  attorney  had  not  been  served  as  re- 
quired, and  that  the  question  was  not  here 
presented,  a  motion  to  dismiss  would  be 
overruled  with  leave  to  renew  it  on  argument 
of  the  case.  Smythe  v.  Smythe  (Ore.) 
1918D-1094.  (Annotated) 

12.  Death  of  partner. — ^Where,  in  an  ac- 
tion against  a  partnership,  service  is  made 
by  publication  and  the  appearance  is  by  the 
})artnership  only,  and  judgment  is  rendered 
against  the  individuals  composing  the  firm, 
and,  pending  the  appeal,  one  of  the  parties 
dies,  held,  a  failure  to  revive  in  the  name 
of  his  personal  representative  is  not  fatal 
to  the  appeal,  inasmuch  as  the  trial  court 
was  without  jurisdiction  to  render  an  in- 
dividual judgment  against  the  deceased. 
Holmes  v.  Alexander    (Okla.)    1918D-1134. 

5.  Certification  of  Questions. 

13.  Disregarding  defects. — Though  a  certif- 
icate from  circuit  court  of  appeals  was  de- 
ficient in  specification  and  somewhat  wanting 
in  precision,  the  court  considers  it  its  duty 
to  answer  the  questions,  where  the  matters 
not  specified  were  not  in  dispute  and  the 
want  of  precision  not  so  fvuidamental  as  to 
mislead  or  confuse.  Boston  Store  v.  Ameri- 
can Graphophone  Co.  (U.  S.)  1918C-447. 

6.  Notice   of   Appeal. 

14.  Defects. — Where  the  notice  of  appeal 
did  not  name  the  court  to  which  the  appeal 
was  taken,  an  amended  undertaking  describ- 
ing the  judgment  as  appealed  to  the  supreme 
court  may  be  considered  as  in  aid  of  the 
notice,  especially  as  it  would  seem  that  on 
an  appeal  from  a  judgment  of  the  circuit 
court,  which  can  be  appealed  only  to  the 
supreme  court,  the  failure  to  name  the  court 


ANN.  CAS.  DIGEST  (1918C-1918E). 


is    immaterial. 
1918D-563. 


Smith.    V.    Dwight     (Ore.) 


7.  Time  of  Appeal. 

15.  A  justice  of  the  peace  not  having  the 
right  to  grant  a  new  trial,  an  appeal  frora  a 
default  judgment  should  have  been  perfect- 
ed within  the  time  allowed  by  law  after  the 
rendition  of  the  judgment.  Welch  v.  Hannie 
(Mi88.)    1918C-325. 

8.  Record  on  AppeaL 

a.  In  General. 

16.  Motion     to     incorporate    evidence    in 

record.— Under  Gen.  St.  1902,  §  797,  it  is 
irregular  to  move  to  make  the  evidence  and 
rulings  part  of  the  record  on  appeal  four 
months  before  the  trial  court's  finding  was 
filed;  such  motion  being  proper  within  a 
week  after  the  movant  receives  notice  of  the 
filing  of  such  finding.  Plum  Tree  Lime  Co. 
V.  Keeler   (Conn.)   1918E-831. 

17.  Immaterial  omission  from  record. — 
Where  the  decision  of  an  appeal  turns  wholly 
on  the  validity  of  a  contract  set  up  in  the 
answer  in  the  action,  and  all  the  portions  of 
the  record  necessary  to  raise  and  determine 
the  question  of  law  are  before  the  court, 
the  absence  of  minor  papers  in  another  action 
between  the  same  parties  from  the  record 
when  the  cases  were  tried  together  in  the 
circuit  court  is  immaterial  and  not  ground 
for  reversal.  Walker  v.  Richmond  (Ky.) 
1918E-1084. 

b.  Transcript  of  Record. 

18.  The  record  on  appeal  must  show  that 
it  contains  a  transcript  of  all  that  portion 
of  the  record  of  the  trial  court  necessary  for 
a  consideration  of  the  questions  presented 
for  review,  and  the  duty  of  having  such  a 
transcript  properly  prepared  and  filed  rests 
upon  the  appellant  or  plaintiff  in  error. 
Baca  V.  Unknown  Heirs  of  Jacinto  Palaez 
{N.  M.)  1918C-612. 

19.  Incorporation  of  exhibits. — ^Without 
express  statutory  authority,  no  original 
paper,  document,  or  entry  in  a  cause  can  be 
incorporated  in  the  transcript  filed  on  appeal 
in  the  supreme  court;  but  all  papers,  docu- 
ments, and  entries  must  be  copied  into  the 
transcript,  and  if  any  such  original  paper, 
document,  or  entry  is  incorporated  in  the 
transcript,  it  will  be  disregarded.  Baca  v. 
Unknown  Heirs  of  Jacinto  Palaez  (N.  M.) 
1918C-612.  (Annotated) 

20.  The  first  section  of  rule  22  of  this 
court  contemplates  the  incorporation  into 
the  transcript  of  the  record  the  substance 
of  voluminous  exhibits,  or  exhibits  which  are 
important  only  as  to  the  fact  of  their  ex;- 
istence  or  as  to  small  portions  of  their  sub- 
ject-matter or  as  establishing  a  negative  fact, 
either  by  agreement  of  the  parties  as  to 
the  statement  of  the  contents  thereof,  or  a 
statement  of  the  contents  of  the  same  settled 
by  the  trial  judge;  but  it  makes  no  provi- 
sion for  the  sending  of  original  exhibits  to 
this  court,  and  their  omission,  or  the  omis- 


sion of  the  statement  mentioned,  from  the 
transcript  of  record.  Baca  v.  Unknown  Heirs 
Jacinto   Palaez    (N.   M.)    1918C-612. 

21.  The  second  section  of  the  rule  was  not 
designed  to  obviate  the  necessity  of  incor- 
porating copies  of  exhibits  in  the  transcript 
of  record,  but  its  only  purpose  was  to  au- 
thorize the  sending  of  original  exhibits  to 
this  court  whenever,  in  the  opinion  of  the 
district  judge,  an  inspection  of  the  original 
paper  would  disclose  some  facts  which  could 
not  be  made  to  appear  by  a  copy  thereof. 
Where  a  statement  of  the  contents  of  ex- 
hibits is  not  agreed  upon,  or  made  up  as 
provided  by  the  first  section  of  the  rule  in 
question,  appellant  or  plaintiff  in  error  must 
have  a  copy  of  the  exhibits,  essential  to  a 
review  upon  appeal,  inserted  in  the  transcript, 
even  though  the  district  judge  orders  the 
original  exhibit  or  exhibits  transmitted  to 
the  supreqie  court  for  inspection.  Baca  v. 
Unknown  Heirs  of  Jacinto  Paj'aez  (N.  M.) 
1918C-612. 

c.  Abstract  of  Record. 
r 

22.  Requisites. — It  is  the  duty  of  an  ap- 
pellant to  furnish  the  supreme  court  with 
an  abstract  which  fairly  represents  all  por- 
tions of  the  record  bearing  upon  the  appeal, 
and  not  merely  those  portions  favorable  to 
appellant.  Martin  v.  Bankers  Trust  Oo. 
(Ariz.)   1918E-1240. 

d.  Settlement    and   Certification. 

23.  Affidavit  of  trial  judge. — ^It  is  not 
proper  for  a  trial  judge,  by  his  personal 
affidavit,  to  supplement  the  record  of  what 
did  or  did  not  transpire  in  the  trial  of  a 
cause  before  him.  Emery  v.  Bennett  (Kan.) 
1918D-437. 

9.  Bill  of  Exceptions. 

24.  The  question  of  the  sufficiency  of  the 
evidence  to  sustain  a  finding  cannot  be  con- 
sidered on  appeal,  from  a  judgment,  where 
the  bill  of  exceptions  relied  on  contains  no 
specification  of  insufficiency  of  evidence,  and 
the  same  is  true  as  to  an  appeal  frora  an 
order  denying  new  trial,  where  based  on  a 
bill  of  exceptions.  Millar  v.  Millar  (Cal.) 
1918E-184. 

25.  Where  a  party  moved  for  a  new  trial 
and  duly  excepted  to  the  denial  thereof,  but 
on  appeal  failed  to  include  his  motions  or 
any  proceedings  thereon  in  the  bill  of  ex- 
ceptions, the  court  cannot  consider  the  as- 
signments of  error,  although  the  proceedings 
appeared  in  the  printed  record,  since  Comp. 
Laws  1897,  §  10504,  requires  all  motions  and 
proceedings  for  the 'new  trial  to  be  included 
in  the  bill  of  exceptions.  In  re  Keene  (Mich.) 
1918E-367. 

26.  No  settled  case  or  bill  of  exceptions  is 
necessary  to  review  an  orderdisposing  of  a 
motion  for  a  new  trial  made  on  the  ground 
that  by  a  clerical  error  of  the  jury  the  ver- 
dict returned  in  court  was  the  opposite  of  the 
verdict  unanimously  agreed  upon  by  them  the 
affidavits  on  which  such  motion  is  made  be- 


APPEAL  AND  EREOR. 


27 


ing  returned.     Paul  v.  Pye,   (Mass.)   1918E- 
286, 

27.  Examination  for  incidental  purpose.— 
Although  the  reasons  for  granting  a  new 
trial  are  not  reviewable  because  not  entered 
of  record  as  required  by  Rev.  St.  1909,  §  2023, 
where  they  are  preserved  in  the  bill  of  ex- 
ceptions they  can  be  considered  as  throwing 
light  upon  the  view  the  trial  court  took  of 
the  case.     Hays  v.  Hogan  (Mo.)   1918E-1127. 

28.  Amendment  of  certificate. — Where  a 
transcript  of  all  the  evidence  is  sent  up  to 
the  supreme  court  with  the  bill  of  exceptions, 
but  is  not  formally  made  a  part  thereof,  the 
court,  on  motion  before  argument,  will  allow 
an  amendment  of  a  certificate  to  the  bill  of 
exceptions  so  as  to  attach  all  the  evidence. 
United  Brokers  Co.  v.  Southern  Pac.  CJo. 
(Ore.)    1918D-814. 

29.  Excluded  papers. — ^Where  offered  evi- 
dence is  excluded  as  not  proving  a  proper  sub- 
ject of  counterclaim,  papers  whose  form  is 
immaterial,  constituting  part  of  such  evi- 
dence, need  not  be  copied  into  the  bill  of 
exceptions.  Neely  v.  Wilmore  (Ark.)  1918D- 
77. 

10.  Assignments  of  Error. 

30.  Questions  not  included  in  the  state- 
ment of  questions  involved  will  not  be  con- 
sidered by  the  supreme  court.  McClintock, 
etc.  Co.  v.  Aetna  Explosive  Co.  (Pa.)  1918E- 
1078. 

31.- The  overruling  of  a  challenge  to  a  juror 
on  the  ground  that  his  examination  shows 
that  he  has  an  opinion  as  to  the  guilt  of  ac- 
cused cannot  be  considered,  where  the  ruling 
is  not  alleged  as  ground  of  error  in  the  speci- 
fications of  error  on  motion  for  new  trial, 
and  is  not  assigned  in  the  assignments  of 
error.     State  v.  Morse  (S.  D.)  1918C-570. 

32.  On  appeal  to  the  supreme-  court,  it  is 
presumed  that  the  judgment  of  the  lower 
court  is  correct,  and  to  overcome  this  pre- 
sumption the  error  must  be  specified  and 
the  specification  accompanied  with  an  ab- 
stract of  all  that  portion  of  the  record  which 
actuated  the  decision  of  the  particular  point. 
Martin  v.  Bankers  Trust  Co.  (Ariz.)  1918E- 
1240. 

33.  Effect  of  want  of  proper  abstract  of 
record. — Unless  an  appellant  presents  an  ab- 
stract fairly  informing  the  court  of  the  er- 
rors relied  on,  abstracting  such  portions  as 
are  necessary  to  a  determination  without  in- 
vestigating the  original  record,  and  the  ap- 
pellee does  not  supply  the  deficiencies,  but 
shows  the  default  of  appellant,  the  assign- 
ment of  errors  to  that  extent  must  be  dis- 
regarded. Martin  v.  Bankers  Trust  Co. 
(Ariz.)   1918E-1240. 

11.  Briefs  of  Counsel. 

34.  Upon  appeal  the  statement  in  the 
briefs  of  the  substance  of  the  evidence  bear- 
ing upon  a  question  of  fact  necessary  to  the 
determination  of  the  case  "will  be  taken  to 
be  accurate  and  suflScient  for  a  full  under- 
standing of  the  questions  presented  for  deci- 
sion, unless  the  opposite  party  in  his  brief 
shall  deny  the  correctness  or  accuracy  of  the 


statement,  specifying  with  particularity  the 
defects  and  inaccuracies  therein,  with  cita- 
tion of  the  page  and  paragraph  of  the  tran- 
script or  page  and  question  of  the  bill  of  ex- 
ceptions, as  the  case  may  be,  relied  upon  by 
him  in  support  of  his  contentions  in  that 
regard."  Supreme  Court  Rule  12  (94  Neb. 
xi).  Chicago,  etc.  R.  Co.  v.  Box  Butte  Coun- 
ty   (Neb.)    1918D-1037. 

12.  Examination  of  Case  on  Appeal. 

a.  What  Is  Brought  Up  by  Appeal. 

(1)  In  General. 

35.  Questions  not  raised  by  motion  for 
new  trial. — Trial  errors  not  set  out  in  the 
grounds  of  motion  for  new  trial  cannot  be 
complained  of  on  appeal.  Ray  v.  Shemwell 
(Ky.)   1918C-1122. 

36.  Specification  of  grounds.— Where  the 
notice  of  intention  to  move  for  new  trial 
specifies  in  general  terms  as  a  ground  insuffi- 
ciency of  the  evidence  to  justify  the  findings, 
decision,  and  judgment  of  the  court,  the  gen- 
eral specification  of  the  insufficiency  of  the 
evidence  is  not  sufficient  to  enable  the  court 
on  appeal  to  review  the  question  of  its  suffi- 
ciency.   Millar  v.  Millar  (Cal.)  1918E-184. 

37.  Where  the  only  ground  stated  for  mo- 
tion for  nonsuit  is  that  there  is  no  evidence 
justifying  the  court  in  granting  the  relief 
prayed  for,  or  any  relief  whatever,  the  court 
on  appeal  cannot  consider  the  evidence  to 
review  the  trial  court's  ruling  denying  the 
motion  for  nonsuit,  since  an  appellate  court 
will  not  review  the  finding  of  the  trial  court 
denying  such  a  motion  upon  any  ground  not 
precisely  and  specifically  stated  in  it,  and 
where  no  ground  is  sufficiently  stated  will 
not  review  it  at  all.  Millar  v.  Millar  (Cal.) 
1918E-184. 

38.  Failure  to  produce  evidence  on  motion 
for  new  trial. — The  provision  of  the  civil 
code  that,  in  order  to  preserve  for  review  a 
ruling  excluding  evidence,  the  evidence  must 
be  produced  at  the  hearing  of  the  motion  for 
a  new  trial,  applies  as  well  in  criminal  cases, 
inasmuch  as  the  criminal  code  makes  such  a 
ruling,  if  erroneous,  a  ground  of  new  trial 
only  by  the  adoption  of  the  civil  procedure 
in  relation  thereto.  State  v.  Wellman  (Kan.) 
1918D-1006. 

39.  Matters  subsequent  to  order  appealed 
from. — Matters  occurring  after  issuing  of 
preliminary  restraining  order  cannot  be  con- 
sidered on  appeal  where  no  supplemental 
pleadings  are  filed.  New  Method  Laundry 
Co.  v.  MacCann  (Cal.)  1918C-1022. 

(2)  Matters  Not  in  Record. 

40.  Record  in  another  case. — In  determin- 
ing whether  the  complaint  states  a  good 
cause  of  action  upon  the  ground  of  the  in- 
surer's bad  faith  in  refusing  to  settle  before 
trial,  the  supreme  court,  on  appeal,  may  not 
look  into  the  record  on  the  appeal  in  the 
employee's  case  to  determine  whether  the 
employee  will  be  able  to  prove  a  case  of  bad 
faith.  Wisconsin  Zinc  Co.  v.  Fidelity,  etc. 
Co.    (Wis.)    1918C-399. 


28 


A:X:Nr.  CAS.  digest  (1918C-1918E). 


(3)   Euliiigs  on  Evidence. 

41.  Absence  of  evidence  from  record. — 
The  admission  of  alleged  incompetent  oral 
evidence  to  identify  real  estate  defectively 
described  in  a  written  contract  of  sale  can- 
not be  reviewed,  in  the  absence  of  the  evi- 
dence from  the  record.  Mundy  v.  Irwin  (N. 
M.)   1918D-713. 

b.  Second  Appeal. 

42.  Law  of  the  case. — ^Decision  on  a  former 
appeal  is  not  binding,  except  in  so  far  as  the 
issues  and  proof  are  the  same  as  upon  the 
former  appeal.  McClintock  v.  McClure  (Ky.) 
1918E-96. 

c.  Examination  of  Questions  of  Fact. 

(1)  In  General. 

43.  Where  by  a  stipulation  of  facts  it  is 
agreed  that  the  amount  claimed  was  received 
by  the  defendant  as  interest  on  public  funds 
in  his  hands  as  county  treasurer,  there  being 
no  statement  of  fact  or  proposition  of  law 
that  the  money  did  not  belong  to  the  plaintiff 
county  but  to  the  owners  of  the  several 
funds,  there  is  no  such  question  subject  to 
review  on  appeal.  Lake  County  v.  Wester- 
tield   (111.)   1918E-102. 

(2)  Verdict  or  Finding  of  Jury. 

44.  The  verdict  of  the  jury  on  conflicting 
evidence  forecloses  any  inquiry  into  the  credi- 
bility of  the  witnesses  or  the  weight  of  their 
testimony.  Childers  v.  Brown  (Ore.)  1918D- 
170. 

46.  Where  the  evidence  is  so  insufficient  to 
sustain  a  verdict  in  a  criminal  case  that  it 
would  seem  to  be  the  result  of  passion  or 
prejudice,  it  will  not  be  approved  by  a  re- 
viewing court,  but  in  such  a  case  the  jury 
are  the  judges  of  the  weight  and  credibility 
of  the  testimony,  and  their  verdict  wmU  not 
be  disturbed  on  review  because  the  evidence 
is  conflicting.  People  v.  Brady  (111.)  1918C- 
540. 

46.  The  weight  to  be  given  to  evidence  sub- 
mitted to  a  jury  whose  finding  of  fact  has 
been  approved  by  the  trial  and  appellate 
courts  cannot  be  inquired  into  in  the  su- 
preme court  where  evidence  in  the  record 
fairly  supports  the  verdict.  Scovill  Mfg.  Co. 
V.   Cassidy    (111.)    1918E-604. 

47.  On  writ  of  error  to  a  state  court,  it  is 
not  the  province  of  the  Federal  Supreme 
Court  to  weigh  conflicting  evidence,  where 
the  record  shows  testimony  supporting  the 
verdict.  Great  Northern  R.  Co.  v.  Donald- 
son  (U.  S.)   19180^581. 

48.  Excessiveness  of  damages. — Wliere  the 
trial  court  has  refused  to  disturb  the  verdict 
on  account  of  the  amount  of  damages  re- 
covered, the  judgment  should  not  be  reversed, 
unless  the  amount  is  so  excessive  or  so  gross- 
ly inadequate  as  to  indicate  prejudice,  pas- 
sion, partiality,  or  corruption  on  the  part  of 
the  jury.  Florence  Hotel  Co.  v.  Bumpas 
(Ala.)   1918E-252. 


(3)  Findings  of  Court. 

49.  The  trial  courts  findings  in  a  suit  in 
equity  are  presumptively  correct,  and  will 
not  be  disturbed  on  appeal  unless  an  obvious 
error  has  intervened  in  the  application  of 
the  law,  or  serious  or  important  mistake  has 
been  made  in  consideration  of  the  evidence, 
especially  in  a  case  in  which  the  testimony 
was  taken  in  open  court,  so  that  the  trial 
court  had  the  opportunity  of  observing  the 
demeanor  of  the  witnesses,  while  the  appel- 
late court  has  before  it  only  a  condensed 
printed  statement  of  the  evidence.  Tobey  v. 
Kilbourne   (U.  S.)   1918C-470. 

50.  Findings  of  court  of  claims. — ^Findings 
of  fact  by  the  court  of  claims  on  a  claim 
against  the  United  States  arising  out  of  a 
contract  for  the  manufacture  of  rapid  fire 
^uns  are  conclusive  on  the  Supreme  Court. 
Saalfield  v.  U.  S.  (U.  S.)  1918E-1. 

(4)  Direction    of    Verdict    or    Judgment    on 
Demurrer  to  Evidence. 

51.  On  appeal  from  a  direction  of  the  ver- 
dict, the  evidence  must  be  viewed  in  the  light 
most  favorable  to  appellants.  Xeelv  v.  Wil- 
more  (Ark.)  1918D-77. 

52.  In  reviewing  the  evidence,  on  Avrit  of 
error  to  review  a  judgment  on  defendant's 
demurrer  to  plaintiff's  evidence,  the  court 
must  accept  as  established  by  plaintiff  what- 
ever the  jury,  as  reasonable  men.  might  have 
concluded  from  the  evidence.  Greenwood  v. 
Royal  Neighbors  of  America  (Va.)  19181)- 
1002. 

(5)  Judgment    of   Intermediate    Appellate 
Court. 

53.  If  the  appellate  court  makes  a  sufficient 
finding  of  fact  as  to  the  matters  in  contro- 
versy, the  only  function  of  the  supreme  court 
is  to  determine  whether  the  law  was  properly 
applied  to  the  facts  as  found.  Schaefer  v. 
Washington  Safety  Deposit  Co.  (111.)  1918C- 
906. 

64.  Where  a  court  of  civil  appeals,  on  ap- 
peal from  judgment  for  plaintiff  in  a  suit  for 
personal  injuries,  held  that  there  Avas  no 
evidence  to  sustain  the  verdict,  a  law  ques- 
tion is  presented  on  error  to  review  such 
judgment  in  the  supreme  court,  but  a  holding 
that  the  evidence  was  insufficient  to  sustain 
the  judgment  does  not  present  a  question  of 
law.     Wilson  v.  Freeman  (Tex.)  1918D-1203. 

66.  SufiSciency  of  finding. — A  finding  of  the 
appellate  court  that  plaintiff  has  not  proved 
the  defendant's  liability  as  alleged,  and  has 
failed  to  prove  any  actionable  negligence  as 
alleged,  is  not  a  finding  of  fact,  but  the  opin- 
ion of  the  court  upon  the  facts.  Schaefer  v. 
Washington  Safety  Deposit  Co.  (111.)  19180^ 
906. 

56.  Conclusiveness  as  to  amount  of  dam- 
ages.— In  an  action  by  a  county  against  its 
treasurer  for  interest  on  money  in  his  hands 
as  ex  officio  collector,  the  judgment  of  the 
appellate  court  is  conclusive  of  the  amount 
of  damages.  Lake  County  ▼.  Wester  field 
(111.)    1918E-102. 

57.  On  error  to  review  the  judgment  of  a 


^VPPEAL  AXD  ERROR. 


29 


court  of  civil  appeals,  on  appeal  in  an  action 
against  a  railroad  by  its  emploj'ee  for  per- 
sonal injuries,  the  supreme  court  cannot  hold 
the  verdict  not  excessive,  the  sole  cause  for 
which  the  court  of  appeals  reversed,  and  af- 
firm the  judgment  of  the  trial  court  for  the 
full  amount,  the  question  of  excessiveness  of 
verdict  in  such  suit  being  purely  a  question 
of  fact,  upon  which  the  judgment  of  the 
court  of  civil  appeals  is  final.  Wilson  v. 
Freeman  (Tex.)  1018D-1203. 

d.  Waiver  of  Error. 

58.  Acceptance  of  benefits. — An  appellant 
who  has  taken  the  benefit  of  the  provisions 
of  the  judgment  apportioning  and  distribut- 
ing the  funds  in  controversy  by  receiving  and 
accepting  the  share  thereof  awarded  to  him, 
is  not  in  position  to  question  such  apportion- 
ment and  distribution.  Thwlng  v.  McDonald 
(Minn.)  1918E-420. 

59.  ^^'hen  a  case  was  reached  for  trial, 
appellant  applied  for  a  continuance.  The 
court  continued  the  case  for  trial  at  a  place 
other  than  the  county  seat.  It  is  held  that 
the  appellant,  having  acquiesced  in  the  order 
and  taken  the  benefit  of  the  continuance,  is 
estopped  from  now  asserting  that  the  court 
had  no  authority  to  make  such  order. 
Thwing  V.  McDonald    (Minn.)    ini8E-420. 

60.  Omission  from  brief  or  argument. — An 
exception  to  which  no  allusion  i-s  made  either 
in  the  brief  or  the  argument  is  deemed  to 
be  waived.  Sroka  v.  Hallidav  (R.  I.)  1918D- 
961. 

61.  As  required  bv  the  provisions  of  rule 
34  a64  X.  C.  551,  81  S.  E.  xii),  exceptions 
taken  on  the  trial  and  not  appearing  in  the 
brief  must  be  taken  as  abandoned.  Camp- 
bell v.   Sigmon    (X.  C.)   1918C-40. 

62.  Objection  that  shipper  did  not  give 
written  notice  of  claim  in  the  time  provided, 
not  having  been  urged  on  the  argument  and 
being  only  mentioned  in  the  brief  without 
discussion,  should  be  considered  abandoned 
under  supreme  court  rule  34  (164  X.  C  551, 
81  S.  E.  xii).    Revnolds  v.  Adam  Express  Co. 

(X.  c.)  1918C-1671. 

63.  Pleading  after  refusal  to  quash  capias. 

— Error  in  refusing  to  quash  a  writ  of  capias 
ad  respondendum  is  not  subject  to  review 
on  writ  of  error  after  final  judgment,  but 
must  be  raised  by  habeas  corpus  or  man- 
damus before  pleading.  Baxter  v.  Wood- 
ward   (Mich.)    1918C-946. 

64.  Plea  of  guilty. — When  a  defendant 
pleads  to  a  criminal  offense  charged  in  an 
indictment — or  an  allegation  when  that  is 
preferred  upon  indictment  being  waived — 
he  cannot  avoid  the  consequences  of  his  plea 
and  reverse  the  judgment  entered  upon  it 
by  showing  that  the  preliminary  complaint 
before  the  magistrate  recited  a  name  as 
that  of  his  accuser  other  than  that  in  the 
indictment  or  allegation,  and  also  because 
the  complaint  was  signed  with  still  another 
name — being  neither  the  one  in  the  caption 
of  the  complaint  nor  the  one  used  in  the  in- 
dictment or  allegation;  and  especially  so 
when    no    such    question    was   raised   in    the 


trial  court.     State  v.  Heyer   (S.  J.)   1918D- 
284. 

13.  Review   of    Exercise    of    Discretionary 
Power. 

65.  Generally,  the  discretion  of  the  trial 
court,  in  ordering  or  refusing  to  order  a  bill 
of  particulars  is  not  reviewable,  unless  pos- 
sibly in  case  of  abuse  of  discretion,  by  Uen. 
Laws  1909,  c.  298,  §§  16,  17,  as  to  new  trial 
and  bills  of  exceptions.  State  v.  Davis  (R. 
I.)   1918C-563. 

66.  Though  the  appellate  court  may  be- 
lieve that  the  weight  of  evidence  is  against 
the  verdict,  the  refusal  of  a  new  trial,  asked 
on  the  ground  of  insufficient  evidence,  will 
not  be  disturbed,  unless  it  appears  that  there 
was  abuse  of  discretion  in  the  refusal.  Arm- 
strong V.  Modern  Woodmen  of  America 
(Wash.)    1918E-263. 

14.  Presumptions  on  Appeal. 

67.  Sufficiency  of  e.vidence. — Where  the 
record  shows  that  a  portion  of  the  evidence 
is  not  included,  the  supreme  court  will  pre- 
sume that  it  is  sufficient  to  cure  defects  in 
the  evidence  brought  up  to  establish  corpus 
delicti.  Revnolds  v.  State  (Ariz.)  1918D- 
879. 

68.  Facts  found. — ^Where  the  jury  were 
instrticted  that,  if  plaintiff  failed  to  prevent 
squeezing  in  the  mine  in  question,  and  negli- 
gently permitted  water  to  accumulate  there- 
in, plaintift'  was  not  entitled  to  the  posses- 
sion of  the  property  sued  for  until  the  dam- 
ages occasioned  defendants  were  paid,  and 
the  jury  found  that  plaintiff  was  entitled 
to  the  possession  of  the  property,  the  su- 
preme court  must  assume  on  appeal  that 
there  was  a  preliminary  finding  that  plain- 
tiff had  not  broken  its  contract  by  failing 
to  prevent  squeezing  in  the  mine,  etc.  Vache 
V.  Central  Coal,  etc.  Co.   (Ark.)   1918E-198. 

69.  As  to  finding  of  intermediate  court. — 
If  the  appellate  court  makes  no  finding  of 
fact,  it  is  presumed  to  have  found  the  facta 
the  same  as  did  the  trial  court.  Schaefer 
v.  Washington  Safety  Deposit  Co.  (III.) 
1918C-906. 

15.  Reversible  Error. 

a.  Error  Must  Be   Material. 

70.  Only  those  errors  which  deprive  the 
accused  of  some  substantial  right  should  be 
held  reversible  error,  and  a  conviction  should 
be  permitted  to  stand,  unless  the  error  com- 
plained of  has  caused  a  substantial  injury. 
Thomas  v.  State   (Miss.)   1918E-371. 

71.  Where  accused  had  a  fair  and  impar- 
tial trial,  notwithstanding  he  voluntarily 
absented  himself  from  the  courtroom  dur- 
ing examination  of  two  jurors,  one  of  whom 
was  after\vards  accepted  and  one  success- 
fully challenged,  error,  if  any,  in  proceeding 
M-ith  the  trial  is  harmless,  and  under  court 
rule  11  (72  South  vii)  cannot  work  reversal. 
Thomas  v.  State    (Miss.)    1918E-371. 

72.  Error  in  permitting  a  party  to  testify 
what  an  interested  witness  had  said  was  her 


30 


ANN.  CAS.  DIGEST  (1918C-1918E). 


opinion  as  to  the  other  party's  right  to  re: 
cover  does  not  require  reversal,  in  view  of 
Pub.  Acts  1911,  c.  32,  providing  that  no  judg- 
ment shall  be  reversed  for  error  unless  it 
materially  affects  the  result.  Moseley  v. 
Goodman    (Tenn.)    1918C-931. 

b.  Error  Must  Be  Prejudicial. 

(1)  Error  in  Admission  of  Evidence. 

78.  The  real  issue  being  whether  plaintiff's 
eggs  acquired  their  foreign  and  imnatural 
flavor  before  or  after  being  put  in  defend- 
ant's cold  storage  plant,  any  error  in  admis- 
sion of  testimony  of  the  president  of  the 
shipping  company  as  to  the  general  course 
of  business  of  the  company,  relative  to  the 
natural  quality  of  the  eggs,  as  regards  de- 
terioration, when  shipped,  is  harmless.  Perry 
V.  Diamond  Ice,  etc.  Co.  (Wash.)  19180- 
891. 

74.  The  issue  being  whether  plaintiff's 
eggs  acquired  their  foreign  and  unnatural 
flavor  after  being  put  in  defendant's  cold 
storage,  and  defendants  manager  having  on 
cross-examination  stated  that  it  had  never 
permitted  fruit  to  be  stored  in  any  room 
with  eggs,  except  when  the  owner  expressly 
consented,  and  that  this  had  been  done  on 
a  certain  occasion  in  the  storing  of  the  eggs 
of  8.,  testimony  of  S.  that  on  such  occasion 
he  had  not  consented  to  the  storing  of  his 
eggs  with  fruit,  as  impeaching  testimony  on 
a  collateral  issue,  is  of  too  small  consequence 
to  be  prejudicial.  Perry  v.  Diamond  Ice,  etc. 
Co.   (Wash.)   1918C-891. 

76.  Admission  of  expert  testimony. — The 
decision  of  the  court  on  the  admissibility  of 
expert  testimony  cannot  be  reversed  unless 
clearly  erroneous.  Boutlier  v.  Maiden 
(Mass.)    1918C-910. 

76.  Discrediting  character  of  accused  — 
Minimum  penalty  imposed. — Where  accused 
did  not  take  the  stand  himself,  and  the  jury 
assessed  the  lightest  possible  penalty  for 
murder  in  the  first  degree,  though  the  of- 
fense could  have  been  nothing  else,  the  er- 
roneous admission  of  evidence  showing 
accused  to  have  been  a  frequenter  of  low  sa- 
loons and  dives  is  harmless.  McCue  v.  State 
(Tex.)    1918C-674. 

77.  Cure  of  error  by  instruction. — In  an 
action  for  damages  for  death  of  plaintiff's 
intestate,  caused  by  sinking  of  boat,  hired 
of  defendant,  in  which  he  had  gone  rowing, 
admission  of  evidence  as  to  condition  of 
other  boats  kept  for  hire  by  defendant  is 
not  cured  by  caution  as  to  weight  to  be 
given  it;  the  weight  being  for  jury.  Clark 
V.  Detroit,  etc.  R.  Co.    (Mich.)    1918E-1068. 

(2)  Exclusion  of  Evidence. 

78.  In  an  action  against  a  hotel  keeper 
for  disturbing  and  humiliating  a  guest,  ex- 
clusion of  a  letter  intended  by  the  hotel 
keeper  for  the  guest,  but  which  was  never 
received  or  opened  by  him,  is  harmless  error. 
Florence  Hotel  Co.  v.  Bumpas  (Ala.)  1918E- 
252. 

79.  In  an  action  against  a  hotel  company 
for  disturbing  and  humiliating  a  guest,  ex- 


clusion of  evidence  that  the  manager  of  the 
hotel  had  had  the  house  detective  hunting 
for  plaintiff  is  harmless  error,  where  the 
manager  stated  without  objection  that  he 
had  made  all  reasonable  efforts  to  locate 
plaintiff.  Florence  Hotel  Co.  v.  Bumpas 
(Ala.)   1918E-a52. 

80.  The  exclusion  of  questions  asked  of  a 
witness  and  to  lay  a  foundation  for  direct 
impeachment  by  proof  of  contradictory  state- 
ments made  by  him  as  a  witness  in  the  trial 
of  another  case  growing  out  of  the  same 
accident  are  not  prejudicial,  where  witness 
admits  that,  if  the  record  on  the  other  case 
is  as  stated  to  him  by  counsel,  he  will  con- 
cede that  he  testified  that  way,  and  where 
a  comparison  of  the  record  shows  no  sub- 
stantial confiict.  Chambers  v.  Minneapolis 
etc.  R.  Co.  (N.  D.)  1918C-954. 

(3)  Other  Errors  in  Relation  to  Evidence. 

81.  Refusal  to  strike — Competency  sub- 
sequently shown. — Where,  in  a  trial  to  the 
court  without  a  jury,  the  court  denies  a  mo- 
tion to  strike  testimony  as  to  the  receipt 
of  money  by  draft  in  exchange  for  the  re- 
turn of  a  deed  based  on  the  ground  that  the 
deed  and  draft  are  the  best  evidence,  and 
testimony  is  subsequently  introduced  show- 
ing that  the  deed  was  burned  and  never  re- 
corded, that  the  person  who  sent  the  draft 
for  the  drawer  thereof  was  dead,  that  neither 
the  drawer  nor  drawee  knew  where  the  draft 
was  procured  and  that  the  records  of  the 
bank  at  which  the  draft  was  cashed  were 
lost  or  destroyed,  the  error  in  refusing  to 
strike  the  testimony  is  not  prejudicial.  Mc- 
Keehan  v.  VoUmer-Clearwater  Co.  (Ida.) 
1918E-1197. 

82.  Statement  of  prosecutor  as  to  fact 
otherwise  proved. — ^Where  there  is  abundant 
other  evidence  to  show  that  deceased  had 
in  his  possession  a  considerable  sum  of 
money,  the  act  of  the  proaecutor  in  stating 
to  the  jury  that  memoranda  found  with  the 
body  of  deceased  showed  that  he  was  hard- 
working and  had  money  in  his  possession 
is  harmless.  McCue  v.  State  (Tex.)  1918C- 
674. 

(4)  Error  in  Instructions. 

83.  ElTor  in  instructions  on  the  measure 
of  damages  are  harmless,  where  plaintiff, 
who  was  shot  while  hunting,  recovered  no 
damages.  Gibson  v.  Payne  (Ore.)  1918C- 
383. 

84.  Error  in  failing  to  state  the  plaintiff's 
theory  of  her  case  as  clearly  as  possible  is 
not  ground  for  reversal,  if  it  does  not  affect 
the  result  of  the  trial,  in  view  of  Pub.  Acts 
1911,  c.  32.  Moseley  v.  Goodman  (Tenn.) 
1918C-931. 

(5)  Error  in   Submitting  Question   to  Jury. 

85.  Submitting  question  of  law. — The  giv- 
ing of  an  instruction  which  left  to  the  jury 
the  construction  of  a  contract  which,  as 
matter  of  la\M,  should  have  been  construed 
contrary  to  plaintiff's  contention,  being  error 
favorable  to  plaintiff,  is  not  error  of  which. 


APPEAL  Ai^D  EEROE. 


31 


he  could  complain.     Creditors  Nat.  Clearing 
House  V,  Bannwart    (Mass.)    1918C-130. 

86.  Where  the  court  should  have  instruct- 
ed that  plaintiff  insured  was  the  owner  of 
property  burned,  defendant  insurance  com- 
pany cannot  complain  because  the  question 
was  left  to  the  jury.  Waller  v.  New  York 
Ins.  Co.   (Ore.)   1918C-139. 

87.  Submitting  question  not  in  issue. — Al- 
though defendant  insurance  company's  al- 
legations regarding  plaintiff's  misrepresenta- 
tions are  insufficient,  yet  iiretructing  that 
such  defense  may  be  waived,  constitutes  re- 
versible error  where  waiver  is  not  an  issue. 
Waller  v.  New  York  Ins.  Co.  (Ore.)  1918 A- 
139. 

88.  Submission  of  issue  not  controverted. — 
In  an  action  against  a  railroad,  under  the 
federal  employers'  act,  for  death  of  its  fire- 
man when  his  train  was  derailed,  where  the 
pleadings  admit  and  the  proof  shows  that 
defendant  was  engaged  in  interstate  com- 
merce, and  that  the  train  was  at  the  time 
making  an  interstate  trip,  the  submission  to 
the  jury  of  the  question  whether  defendant 
was  engaged  in  interstate  commerce  at  the 
time  of  the  accident  is  harmless  error.  Davis 
V.  Cincinnati,  etc.  R.  Co.  (Ky.)  1918E-414. 

c  Errors  Not  Available. 

(1)  Questions  Not  Raised  Below. 

89.  Objections  to  evidence  not  brought  to 
the  attention  of  the  trial  court  or  based  upon 
exceptions  cannot  be  considered.  Baxter  v. 
Woodward   (Mich.)   1918C-946. 

90.  Where  a  party  defendant  in  a  mortgage 
foreclosure  suit  did  not  claim  costs  below,  the 
trial  court's  failure  "to  allow  costs  to  him  will 
not  be  reviewed.  Simmons  v.  Northern  Pae. 
R.  Co.    (Wash.)   1918C-1184. 

91.  A  question  not  presented  and  argued  in 
the  court  below  will  be  held  to  have  been 
waived  and  abandoned,  and  will  not  be  con- 
sidered in  an  appellate  tribunal.  State  v. 
Heyer  (N.  J.)  1918D-284. 

92.  Exceptions  to  findings  of  fact  are  im- 
material where  a  new  trial  is  necessary  be- 
cause of  error  in  excluding  evidence.  Davis 
V.  Dunn  (Vt.)  1918D-994. 

93.  Where  a  Minnesota  statute  giving  at- 
torneys a  lien  on  the  cause  of  action  of  their 
clients  was  held  applicable  to  an  action  in 
the  courts  of  that  state,  based  on  the  Federal 
Employers'  Liability  Act  (Act  April  22,  1908, 
c.  149,  35  Stat.  65,*  and  Act  April  5,  1910,  c. 
143,  36  Stat.  291,  8  Fed.  St.  Ann.  [2d  ed.] 
1208),  and  that  the  pleadings  showed  that  the 
action  was  one  for  injuries  received  in  inter- 
state commerce,  and  the  question  of  the  ap- 
plicability of  the  statute  was  discussed  in 
the  state  court,  a  writ  of  error  to  review  the 
judgment  on  the  ground  that  the  statute  as 
construed  was  repugnant  to  the  Constitution 
and  laws  of  the  United  States  cannot  be  dis- 
missed on  the  theory  that  the  question  had 
not  been  raised  below.  Dickinson  v.  Stiles 
(U.  S.)  1918E-501. 

(2)  Sufficiency  of  Objection  or  Exception. 

94.  Duty  to  make  specific  objection. — The 


duty  of  an  attorney  as  an  officer  of  the  court 
is  to  assist  the  court  in  arriving  at  a  just 
and  lawful  conclusion  and  judgment  in  every 
cause;  and  when  he  has  a  proper  objection 
to  the  pleadings  or  proceedings,  he  should 
point  out  clearly  and  specifically  the  grounds 
for  his  objection;  and  when  he  fails  to  make 
it  with  such  clearness  and  precision  that  the 
court  can  understand  it,  he  will  ordinarily 
be  held  to  have  waived  his  objection.  Fol- 
'lowing  Riverside  v.  Bailey,  82  Kan.  429,  431, 
108  Pac.  796.  Emery  v.  Bennett  (Kan.) 
1918D-437. 

95.  Objections  to  pleading. — Objections 
made  at  the  trial  to  the  sufficiency  of  a  plead- 
ing must  definitely  point  out  the  alleged  er- 
rors, and,  when  that  is  not  done,  the  pleading 
will  be  liberally  construed  in  order  to  uphold 
the  judgment.  Cleveland  v.  Bateman  (N.  M.) 
1918E-1011. 

96.  Where  a  plea  is  bad  and  was  properly 
so  held,  it  is  unimportant  that  the  objection 
was  raised  below  by  motion  to  strike  and  not 
by  demurrer.  Cain  v.  Osier  (la.)  1918C- 
1126. 

97.  Objection  to  evidence. — Objection  that' 
no  foundation  was  laid  for  impeachment  tes- 
timony cannot  be  considered  on  appeal,  where 
the  only  trial  objection  to  such  testimony  was 
that  the  evidence  was  immaterial.  Baxter  v. 
Woodward  (Mich.)  1918C-946. 

98.  Exceptions  to  instructions. — ^Instruc- 
tions given  by  the  court  and  not  excepted 
to  by  the  defendant  at  the  trial  or  before 
the  trial  court,  will  not  be  reviewed  on  ap- 
peal, unless  fundamental  error  is  appar- 
ent.    Poling  V.  State   (Okla.)   1918E-663. 

(3)  Errors  Favorable  to  Appellant. 

99.  As  the  state  cannot  appeal  in  criminal 
cases,  the  only  matter  which  the  court  of 
criminal  appeals  can  review  is  whether  error 
Was  committed  against  accused;  and,  if  so, 
was  the  error  prejudicial.  McCue  v.  State 
(Tex.)    1918C-674. 

100.  In  a  trial  for  obtaining  money  and 
property  by  means  of  the  confidence  game, 
defendants  may  not  object  to  rulings  on  the 
admission  and  rejection  of  evidence  more  fav- 
orable to  them  than  the  law  required.  Peo- 
ple V.  Brady  (111.)   1918C-540. 

101.  Where  defendant  was  found  guilty  on 
several  counts,  and  the  prosecutor  entered  a 
nolle  pros,  as  to  some  of  the  counts,  defend- 
ant was  not  injured.  People  v.  Brown  (111.) 
1918D-772. 

(4)  Wrong  Reason  for  Correct  Decision. 

102.  It  is  not  reversible  error  for  a  judge  to 
base  his  correct  judgment  on  the  wrong  case 
previously  decided,  the  question  being  wheth- 
er the  conclusion  is  right,  and  not  whether  the 
trial  judge  assigned  the  right  reason  for  it. 
Berry  v.  JMarion  County  Lumber  Co.  (S.  C.) 
1918E-877. 

103.  Where  proper  findings  of  fact  based 
upon  the  evidence  have  been  made,  it  is  not 
ordinarily  important  what  course  of  judicial 
reasoning  is  announced  by  the  trial  court  in 
arriving  at  its  decision  when  the  decision  it- 


32 


ANK  CAS.  DIGEST  (1918C-1918E). 


self   is   correct.      Saylor   v.   Crooker    (Kan.) 
1918D-473. 

16.  Decision  or  judgment  of  Appellate  Court. 

104.  Reversal  without  remand. — Where 
plaintiff  could  not,  under  any  theory  under 
the  evidence,  recover,  a  judgment  for  plain- 
tiff will  be  reversed  without  remand.  Ck)n- 
necticut  Fire  Ins.  Co.  v.  W.  H.  Rogers  Lum- 
ber Co.  (Va.)  1918E-1045. 

105.  Remand  for  further  hearing. — Where 
in  a  suit  to  set  aside  an  award  of  arbitratoi's 
determining  the  compensation  to  which  a  rail- 
road which  built  a  bridge  was  entitled  for 
its  use  by  another  road  under  a  common 
user  clause  of  the  city  ordinance  authoriz- 
ing the  building,  it  is  extremely  difficult  in 
the  condition  of  the  record  to  appraise  fairly 
the  value  of  the  realty  covered  by  the  abut- 
ments and  approaches  to  the  bridge,  the 
cause  should  be  remanded  to  the  trial  court 
for  a  hearing  on  the  subject,  both  parties  to 
be  privileged  to  introduce  further  testimony. 
Oregon-Washington  R.  etc.  Co.  v.  Spokane, 
etc.  R.  Co.    (Ore.)   1918C-991. 

106.  Modification. — "VNTiere  a  hiisband  con- 
tracts to  pay  a  broker  a  commission  for  an 
exchange  of  property,  a  judgment,  broad 
enough  to  be  considered  as  a  personal  judg- 
ment against  the  wife  individually,  while 
erroneous  does  not  necessitate  a  reversal  of 
the  judgment,  but  it  will  be  so  modified  as  to 
run  against  the  husband  and  the  community. 
Godefroy  v.  Hupp   (Wash.)    1918E-494. 

107.  Granting  new  trial. — Under  Code  Civ. 
Proc.  §  1346,  providing  that  an  appeal  may 
be  taken  to  the  appellate  division  on  ques- 
tions of  law  or  on  the  facts  or  on  both  from 
a  judgment  on  a  verdict,  or  on  trial  by  the 
referee  or  court  without  a  jury,  on  appeal  to 
the  court  of  appeals  from  a  judgment  of  the 
appellate  division  reversing  a  judgment  for 
plaintiff  entered  upon  a  verdict  and  dismiss- 
ing the  complaint,  where  it  appears  that  the 
appellate  division  has  reviewed  the  facts  and 
is  not  satisfied  therewith,  the  court  of  ap- 
peals, reversing,  should  grant  new  trial. 
Meisle  v.  Xew  York  Cent.  etc.  R.  Co.  (N.  Y.) 
1918E-1081. 

108.  Objection  to  form  of  decree  after  deci- 
sion on  appeal. — ^N"o  objection  to  the  form  of 
the  decree  in  a  suit  to  foreclose  a  vendor's 
lien,  based  upon  the  recital  therein  that 
plaintiff  "do  have  and  recover"  a  certain  sum 
of  money,  can  be  raised  in  the  proceedings 
had  after  such  decree  was  affirmed  on  ap- 
peal, where  this  objection  was  not  taken  on 
the  appeal.  Pease  v.  Rat hbun -Jones  Engi- 
neering Co.  (U.  S.)  191801147. 

109.  Instructions  on  second  trial  where  new 
issue  raised. — W^here  a  new  issue,  raised  by 
the  amended  pleadings,  was  the  only  issue  on 
second  trial  upon  which  to  instruct  the  jury, 
the  instructions  should  have  been  confined  to 
such  issue,  as  though  no  former  appeal  had 
been  taken  and  without  regard  to  the  opin- 
ion upon  such  appeal.  McClintock  v.  ^IcClure 
(Ky.)  1918E-96. 

110.  Decision  of  intermediate  court  of  ap- 
peal.— An  appellate  court  may  reverse  a  judg- 
ment for  error  of  law  or  error  of  fact.    If  for 


error  of  law,  which  may  be  corrected  en  an- 
other trial,  the  cause  must  be  remanded;  but 
if  for  error  of  fact,  where  no  material  evi- 
dence has  been  wrongfully  excluded,  the 
judgment  of  the  appellate  court  may  be  final, 
but  the  other  facts  on  which  the  judgment 
rests  must  be  found  and  recited  in  the  judg- 
ment. Schaefer  v.  Washington  Safety  De- 
posit Co.    (111.)    1918C-906. 

17.  Supersedeas  and  Bond. 

a.  In  General. 

111.  Deposit  in  lieu  of  bond. — Xo  order  of 
court  is  required  to  allow  the  making  of  a 
deposit  in  lieu  of  an  appeal  bond,  as  au- 
thorized bv  Gen.  St.  1913.  §  8002.  Thwing  v. 
McDonald'  (Minn.)    1918E-420. 

112.  The  deposit,  made  in  lieu  of  an  appeal 
bond,  pursuant  to  Gen.  St.  1913,  §  8002,  being 
conditioned  only  for  payment  of  the  cost.s  of 
appeal,  does  not  stay  proceedings  on  the  judg- 
ment. Thwing  V.  McDonald  (Minn.)  1918E~ 
420. 

113.  Necessity  for  undertaking  by  state  in 
divorce  case. — It  is  not  ground  for  the  dis- 
missal of  an  appeal  by  the  district  attorney 
in  a  suit  for  divorce  that  he  filed  no  under- 
taking; L.  0.  L.  §  578.  expressly  excusing  the 
state  from  filing  an  undertaking.  Smvthe  v. 
Smythe  (Ore.)  1918D-1094. 

b.  Amendment  of  Bond. 

114.  An  amended  undertaking  on  appeal 
given  in  response  to  a  motion  to  dismiss, 
qiiestioning  the  sufficiency  of  the  undertak- 
ing, should  be  filed  upon  leave  obtained  from 
the  supreme  court,  and  as  an  independent 
pleading  in  the  proceeding.  Smith  v.  Dwight 
(Ore.)   1918D-563. 

c.  Summary  Judgment  against  Sureties. 

115.  A  federal  court  of  equity  is  not  with- 
out jurisdiction  on  the  ground  of  the  exis- 
tence of  an  adequate  remedy  at  law  to  ren- 
der a  summary  judgment,  conformably  to 
the  local  law,  against  sureties  on  an  appeal 
bond,  where  the  decree  appealed 'from  has 
been  affirmed.  Pease  v.  Rathbun-Jones  En- 
gineering Co.   (U.  S.)   1918C-1147. 

(Annotated) 

116.  The  constitutional  right  of  trial  by 
jury  presents  no  obstacle  to  the  rendition  by 
a  federal  district  court,  conformably  to  the 
local  law.  of  a  summary  judgment  against 
the  sureties  on  an  appeal  bond  upon  the  af- 
firmance of  the  decree  appealed  from,  since 
a  person,  by  becoming  a  surety,  submits  him- 
self to  be  governed  by  the  fixed  rules  which 
regulate  the  practice  of  the  court.  Pease  v. 
Rathbun-Jones  Engineering  Co.  (U.  S.) 
1918C-1147.  (Annotated) 

117.  In  an  action  against  a  railroad  com- 
pany and  others,  where  the  road's  appeal,  as 
stated  bj'  the  notice  thereof,  is  "from  a  judg- 
ment in  favor  of  the  plaintiff,"  and  its  super- 
sedeas bond  recites  that  the  road  desired  to 
appeal  from  the  judgment  and  the  whole  and 
every  part  thereof,  the  remitittur  on  affirm- 
ance, directing  judgment  on  the  supersedeas 


APPEARAA^CE— AKBITRATIOiS^  AND  AWARD. 


33 


bond  in  favor  of  the  plaintiff  against  the 
road  and  the  sureties  on  the  supersedeas  bond 
for  a  money  judgment  recovered  against  other 
defendants,  judgment  in  the  trial  court  hav- 
ing gone  against  the  railroad  only  to  the 
extent  of  barring  any  interest  in  certain  prop- 
erty, except  a  right  of  way,  and  for  costs, 
is  proper,  and  not  open  to  modification.  Sim- 
mons V.  Northern  Pac.  R.  Co.  (Wash.)  1918C- 
1184.  (Annotated) 

118.  A  decree  entered  pursuant  to  the  man- 
date of  a  federal  circuit  court  of  appeals  in 
an  action  to  foreclose  a  vendor's  lien  is  not 
void  in  so  far  as  it  orders  a  deficiency  execu- 
tion to  issue  against  the  defendant  and  the 
sureties  on  his  appeal  bond,  where  the  or- 
iginal decree,  which  the  circuit  court  of  ap- 
peals affirmed,  adjudged  that  plaintiff  "do 
have  and  recover"  a  certain  sum  of  money, 
established  a  lien  on  certain  property,  and 
ordered  the  sale  thereof  to  satisfy  the  judg- 
ment if  not  paid  in  a  specified  time,  and  the 
mandate  from  the  appellate  court  command- 
ed that  "such  execution  and  further  pro- 
ceedings be  had  in  said  cause  as,  according 
to  right  and  justice  and  the  laws  of  the 
United  States,  ought  to  be  had."  Pease  v, 
Rathbun-Jones  Engineering  Co.  (U.  S.) 
1918C-1147. 

119.  Waiving  notice. — The  jurisdiction  or 
power  of  a  federal  district  court  to  render 
summary  judgment  against  the  sureties  on 
an  appeal  bond  upon  an  affirmance  of  the 
decree  appealed  from,  and  without  notice  to 
the  sureties,  may  not  be  questioned  after  the 
parties  have,  by  motions  subsequently  filed, 
invoked  a  decision  of  the  court  upon  the 
question  of  the  sureties'  liability  on  the  evi- 
dence presented  by  them,  no  relevant  fact 
being  in  dispute.  Pease  v.  Rathbun-Jones 
Engineering  Co.    (U.   S.)    1918C-1147. 

(Annotated) 

120.  ESect  of  payment  to  preclude  re- 
view.— The  payment  by  a  surety  on  the  ap- 
peal bond  of  a  dissolved  corporation,  "as 
trustee  for  himself  and  the  other  stockhold- 
ers," of  the  deficiency  execution  issued  on  the 
bond  upon  the  affirmance  of  the  decree  ap- 
pealed from  relieves  an  appellate  court  from 
the  necessity  of  determining  whether  the  triftl 
court  erred  in  entering  judgment  against  the 
sureties  for  the  deficiency  instead  of  judg- 
ment merely  for  the  costs  and  any  damages 
to  the  plaintiff  resulting  from  the  delay  in- 
cident to  the  unsuccessful  appeal.  Pease  v. 
Rathbun-Jones  Engineering  Co.  (U.  S.) 
1918C-1147. 

18.   Costs. 

121.  Fees  for  serving  papers. — SherifFs  fees 
for  serving  notice  of  appeal,  as  well  as  the 
record  and  briefs,  on  defendants,  who  were 
not  adverse  parties,  cannot  be  allowed  as 
part  of  appellant's  costs  and  disbursements. 
Thwing  V.   McDonald    (Minn.)    1918E-420. 

122.  Wliere  notice  of  appeal  is  served  on 
the  attorney  for  a  party,  appellant  is  not 
entitled  to  costs  for  service  of  notice  on  the 
parties;  such  service  being  unnecessary. 
Thwing  v.  McDonald   (Minn.)   1918E-420. 

123.  Expenses  for  the  serving  of  notice  of 

Ann.  Cas.  Dig.  1918C-E.— 3. 


an  appeal  by  a  private  party  cannot  be  al- 
lowed appellant  as  costs.  Thwing  v.  McDon- 
ald  (Minn.)    1918E-420. 

124.  Cost  of  papers  not  used  in  appeal. — 
Costs  cannot  be  allowed  appellant  for  cer- 
tified copies  of  the  records,  where  it  did  not 
appear  that  they  were  for  use  in  the  appellate 
court.  Thwing  v.  McDonald  (Minn.)  1918E- 
420. 

19.  Rehearing. 

125.  To  suggest  or  set  up  a  federal  question 
for  the  first  time  in  a  petition  for  rehearing 
in  the  highest  court  of  the  state  is  not  in 
time.     Wren  v.  Dixon  (Nev.)  1918D-1064. 

126.  Where  at  the  original  hearing  on  ap- 
peal a  decree  setting  aside  an  award  by  arbi- 
trators was  affirmed  and  compensation  for 
the  use  of  a  railroad  bridge  by  another  rail- 
road was  determined  by  the  court,  which 
compensation  included  a  requirement  that 
the  using  railroad  should  pay  a  specified  per 
cent  of  the  interest  charged  on  the  cost  of 
the  bridge,  on  which  question  there  was  no 
argument  in  the  court  below  or  on  the 
original  hearing,  the  original  opinion  will  be 
withdrawn  as  to  that  provision  and  the  cause 
remanded  to  the  lower  court  for  a  hearing 
thereon.  Oregon-Washington  R.  etc.  Co.  v. 
Spokane,  etc.  R.  Co.   (Ore.)   1918C-991. 


APPEARANCE. 

1.  By  partner. — Under  Rem.  &  Bal.  Code, 
§  241,  declaring  every  appearance  general 
unless  defendant  states  it  to  be  special,  the 
answer  stating  "come  now  defendants  R.  and 
C.  as  a  member  of  the  firm  of  D.  &  Co.,  and 
not  otherwise,"  is,  notwithstanding  prior 
successful  special  appearance  by  C,  to  quash 
service  against  him,  a  general  appearance, 
bringing  him  into  court  not  only  as  a  part- 
ner but  an  individual,  individual  liability 
being  the  essence  of  partnership  obligations. 
National  Union  F.  Ins.  Co.  v.  Dickinson 
(Wash.)  1918C-1042. 


APPLIANCES. 

Master's  duty  as  to,  see  Master  axd  Serv- 
ant, 4,  5. 


ARBITRATION  AND  AWARD. 

1.  Agreement  to  Arbitrate,  34. 

2.  Award: 

a.  Setting  Aside  or  Impeachment,  34. 

b.  Effect  of  Award,    34. 

c.  Enforcement,  34. 

Award  by  arbitrators  pending  execution  of 
contract  as  modification  of  contract,  see 
Contracts,  27. 

Construction  of  provision  in  charter  party 
for  settlement  of  all  disputes  by  arbi- 
tration, see  Ships  and  Shipping,  1,  2, 
4. 


34 


ANN.  CAS.  DIGEST  (1918C-1918E). 


Enforceability   of   foreign   contract  to   arbi- 
trate, see  Conflict  of  Laws,  1. 

1.  Agreement  to  Arbitrate. 

L  Where  a  lease  granted  the  lessee  the 
privilege  or  option  to  purchase  the  property 
after  ten  years  at  a  value  to  be  determined 
by  "appraisal,"  and  provided  that  the  deci- 
sion of  any  two  of  the  three  appraisers 
should  be  binding  on  the  parties,  the  ar- 
rangement to  have  the  value  of  the  lots:  fixed 
by  appraisers  was  not  an  agreement  to  sub- 
mit to  arbitration,  revocable  by  the  lessee, 
but  an  irrevocable  agreement  made  before 
controversy,  to  leave  the  incidental  matter 
of  price  to  appraisers  or  referees,  and  sub- 
lessees having  refused  to  abide  by  the  de- 
cision of  two  appraisers,  after  exercising 
their  option  to  purchase,  could  be  compelled 
to  perform  by  bill  for  specific  performance. 
Martin  v.  Vansant   (Wash.)   1918D-1147. 

(Annotated) 

2.  Revocation. — At  common  law,  the  pow- 
er of  arbitrators  to  make  a  binding  award 
is  subject  to  revocation  at  any  time  before 
an  award  is  made,  unless  the  submission  is 
governed  by  statute  or  made  a  rule  of  court, 
the  remedy  of  the  aggrieved  party  in  case 
of  revocation  being  an  action  in  damages  for 
breach  of  the  agreement  to  arbitrate.  Martin 
V.  Vansant    (Wash.)    1918D-1147. 

(Annotated) 

2.  Award. 

a.  Setting  Aside  or  Impeachment. 

3.  The  rule  that  a  judgment  of  the  chancel- 
lor cannot  be  substituted  for  that  of  arbi- 
trators does  not  prevent  courts  of  equity 
from  setting  aside  awards  of  arbitrators  for 
fraud  or  mistake.  Oregon -Washington,  R. 
etc.  Co.  V,  Spokane   (Ore.)   1918C-991. 

4.  An  award  of  arbitrators  may  be  im- 
peached for  their  mistake  in  setting  down 
their  conclusion,  although  the  mistake  ap- 
pears dehors  the  award  only.  Black  v.  Wood- 
ruff  (Ala.)    1918C-969.  (Annotated) 

5.  While  an  award  of  arbitration  entered 
in  a  pending  suit  is  not  open  to  collateral  at- 
tack, its  correctness  may  be  attacked  in  a 
proceeding  for  its  specific  enforcement,  al- 
though the  defense  is  not  brought  forward 
by  a  cross  bill.  Black  v.  Woodruff  (Ala.) 
1918C-969.  (Annotated) 

6.  Estoppel. — A  party  to  an  award  of  ar- 
bitrators is  under  no  obligation  to  be  present 
when  the  award  is  made,  and  failure  to  be 
present  does  not  estop  him  from  attacking 
the  correctness  thereof.  Black  v.  Woodruff 
(Ala.)    1918C-969.  (Annotated) 

7.  Evidence. — In  a  suit  to  set  aside  an 
award  of  arbitrators  on  the  gi'ound  of  mis- 
take, affidavits  showing  facts  subsequent  to 
the  award  have  no  bearing  on  the  question 
of  whether  it  should  be  set  aside,  but  may 
be  considered  by  the  court  at  the  hearing 
after  the  award'  has  been  vacated.  Oregon- 
Washington  R.  etc.  Co.  V.  Spokane,  etc.  R. 
Co.   (Ore.)   1918C-991. 

8.  In  a  suit  to  set  aside  an  award  by  ar- 
bitrators on  the  ground  that  because  of  mis- 


take the  award  did  not  represent  the  judg- 
ment of  the  arbitrators,  the  evidence  taken 
before  the  arbitrators  is  competent  and  ma- 
terial. Oregon-Washington  R.  etc.  Co.  v. 
Spokane,  etc.  R.  Co.    (Ore.)   1918C-991. 

9.  In  a  suit  to  set  aside  an  award  of  the 
railroad  commission  sitting  as  arbitrators  to. 
determine  the  compensation  of  a  railroad 
which  built  a  bridge  for  its  use  by  another 
road,  the  evidence  is  held  to  sustain  finding 
that  the  award  so  entirely  disregarded,  mis- 
took, and  misapplied  the  evidence  introduced 
at  the  hearing  before  the  commissioners  as 
to  deprive  plaintiff  road  of  its  rights  in  the 
bridge,  and  of  its  rights  in  the  ordinance  of 
a  city  authorizing  its  building  and  containing 
a  common  user  clause  and  in  the  resolution 
and  order  of  the  secretary  of  war  authorize 
ing  the  bridge.  Oregon-Washington  R.  etc. 
Co.  v.  Spokane,  etc.  R.  Co.  (Ore.)  1918C-991: 

(Annotated) 

10.  Matters  to  be  determined. — In  suit  to 
set  aside  an  award  of  the  railroad  commis- 
sion sitting  as  arbitrators  to  determine  the 
compensation  to  which  a  railroad  which  built 
a  bridge  was  entitled  for  its  use  by  another 
road,  where  the  answer  of  such  other  road 
asked  general  equitable  relief,  the  court, 
having  set  aside  the  award  as  inadequate, 
ehould  proceed  to  determine  the  reasonable 
compensation  to  be  awarded.  Oregon-Wash- 
ington R.  etc.  Co.  V.  Spokane,  etc.  R.  Co. 
(Ore.)  1918C-991. 

11.  Decree. — ^Where  the  parties  to  a  suit 
to  set  aside  an  award  of  arbitrators  agreed 
before  the  arbitrators  on  stipulations  modi- 
fying the  common-law  rules  of  liability  in 
the  matter  which  the  arbitration  concerned, 
such  stipulations,  incorporated  in  the  award, 
should  be  made  part  of  the  decree  setting  it 
aside  and  correcting  its  errors.  Oregon- 
Washington  R.  etc.  Co.  V.  Spokane,  etc.  R. 
Co.   (Ore.)   1918C-991. 

12.  Resubmission. — In  suit  to  set  aside  an 
award  of  arbitrators,  in  the  absence  of  agreie- 
ment  by  the  parties,  the  court  is  not  au- 
thorized to  resubmit  a  question  to  the  board, 
of  arbitrators.  Oregon-Washington  R.  etc. 
Qo.  V.  Spokane,  etc.  R.  Co.  (Ore.)  1918C- 
991. 

b.  Effect  of  Award. 

13.  Modification. — ^^Tiere  arbitrators  have 
returned  an  award  in  a  pending  suit,  they 
are  powerless  subsequently  to  modify  it, 
since  their  authority  ceases  upon  the  return 
of  the  award  to  the  court.  Black  v.  Woodruff 
(Ala.)   1918C-969. 

c.  Enforcement. 

14.  Absence  of  order  authorizing  award. — 
An  award  by  arbitrators  made  in  a  suit  to 
rescind  a  land  contract  may  be  enforced  by 
specific  performance,  although  the  award 
could  not  be  entered  as  a  decree  because  of 
failm-e  to  have  a  preliminary  order  of  the 
court  authorizing  it.  Black  v.  Woodruff 
(Ala.)  1918C-969. 

15.  Effect  of  mistake. — In  a  suit  to  re- 
scind a  land  contract,  the  parties  agreed  to 


ARCHITECTS— AEMY  AND  NAVY. 


35 


submit  the  amount  of  reimbursement  to  arbi- 
tration. The  arbitrators  returned  an  award 
in  two  separate  papers,  one  of  which  de- 
termined that  defendant  pay  to  plaintiff  a 
certain  sum,  with  half  of  the  costs  of  the 
arbitration  and  certain  witness  fees.  The 
other  determined  that  plaintiff  pay  to  de- 
fendant a  certain  smaller  sum  for  rent  and 
half  of  the  costs  of  arbitration  and  for  wit- 
ness fees.  The  two  sums  were  then  added, 
and  the  amount  which  plaintiff  had  to  pay 
was  subtracted  therefrom,  and  the  result 
filed  as  the  award.  Defendant  claimed  that 
the  sums  of  the  two  parts  of  the  award 
should  have  been  subtracted,  making  him 
liable  for  that  difference  only.  It  is  held 
that  it  was  error  to  enforce  specifically  the 
award  as  made;  it  not  expressing  the  actual 
decision  of  the  arbitrators.  Black  v.  Wood- 
ruff  (Ala.)   1918E-969.  (Annotated) 


ARCHITECTS. 

Necessity    for    architect's    certificate    under 
building  contract,  see  Contracts,  31,  32 


3.  Reference  to  financial  condition  of  plain- 
tiff.— In  an  action  for  slander,  where  the  mis- 
conduct of  plaintiff's  counsel  in  arguing  to  the 
jury  the  financial  condition  of  plaintiff'  is 
partially  responsible  for  the  excessive  ver- 
dict, it  is  prejudicial  error,  although  the  dis- 
cussion was  started  by  defendant's  counsel  in 
his  address  to  the  jury,  and  the  misconduct 
of  counsel  is  ordinarily  a  matter  for  the  dis- 
cretion of  the  trial  court.  Cain  v.  Osier 
(la.)  1918C-1126. 

4.  Challenging  opponent  to  waive  rights. — 
On  the  trial  of  a  will  contest  it  is  im- 
proper and  prejudicial  for  the  contestant's 
attorney  repeatedly  to  challenge  the  attorney 
for  the  proponents  to  waive  the  statutory 
prohibition  against  evidence  of  interested 
witnesses  as  to  personal  transactions  with 
the  decedent,  and  to  state  that  proponents 
would  take  advantage  of  every  possible  tech- 
nicality, and  that  one  of  the  proponents  mar- 
ried a  domestic  in  the  testator's  family  for 
the  purpose  of  making  her  an  incompetent 
witness.  In  re  Connor's  Will  (la.)  191SC- 
378.  (Annotated) 


ARGUMENT  AND  CONDUCT  OF 
COUNSEL. 

See  Attobnets. 

1.  Right  to  open  and  close. — Under  Code 
1906,  §  2864,  providing  that,  on  trial  of  an 
issue  on  an  avowry,  the  burden  of  proof  shall 
be  on  the  avowant,  the  landlord,  and  he 
shall  have  the  right  to  open  and  conclude 
the  argument,  when  an  issue  has  been  ten- 
tered  on  the  avowry,  denying  the  allega- 
tions of  the  avowry,  the  burden  is  on  the 
landlord,  or  avowant,  and  if  the  relation  of 
landlord  and  tenant,  the  amount  of  the  con- 
tract, or  the  amount  of  supplies  furnished, 
is  denied,  the  landlord  must  assume  the  bur- 
den and  prove  his  contention,  but  if  the  re- 
lation be  admitted,  and  the  amount  of  the 
rent  contract  for  supplies  furnished  is  not 
denied,  no  issue  is  made  on  the  avowry,  and, 
if  plaintiff  undertakes  to  confess  and  avoid 
by  an  affirmative  plea  setting  up  new  matter, 
and  issue  is  tendered  on  the  plea,  the  burden 
shifts,  plaintiff  assuming  it,  and  having  the 
right  to  open  and  conclude  the  evidence  and 
argument.  McXeer  v.  Xorfleet  (Miss.) 
1918E-436. 

2.  Reference  to  race  of  accused. — On  the 
trial  of  a  negro  charged  with  the  murder  of 
a  white  man,  before  a  jury  of  white  men, 
the  county  attorney  in  his  opening  argument 
referred  to  the  defendant  as  "'this  black  mur- 
derer." On  objection  being  made,  the  court 
admonished  counsel  to  be  temperate  in  his 
remarks.  The  county  attorney  in  his  closing 
argument  referred  to  the  defendant  as  "this 
coal-black  murderer."  Again,  objection  being 
made,  the  court  peremptorily  overruled  the 
same.  The  language  objected  to,  held  to 
be  grossly  improper,  and  prejudicial  to  the 
defendant;  and  the  refusal  of  the  court  to 
interfere  and  to  properly  instruct  the  jury 
to  disregard  the  same  prejudicial  error.  More- 
head  V.  State  (Okla.)  19i8C-416. 


ARMY   AND    NAVY. 

1.  Validity  of  conscription  act. — Selective 
Draft  Act  of  May  18,  1917,  c.  15,  40  Stat.  76 
(Fed.  St.  Ann.  Pamph.  Supp.  No.  11,  p.  85), 
is  valid,  in  so  far  as  it  authorizes  the  Presi- 
dent to  make  rules  and  regulations  for  its 
enforcement  having  the  effect  of  law,  and  is 
not  open  to  attack  as  a  delegation  of  legisla- 
tive  authority.     Franke  v.  Murrav    (U.   S.) 

"  1918D-98.  (Annotated) 

2.  Persons  subject  to  military  law. — ^Re- 
peals by  implication  are  never  favored,  and 
only  when  the  two  acts  are  totally  incon- 
sistent will  the  older  be  held  repealed  by  the 
later.  Therefore  Articles  of  War,  art.  2  (Fed. 
St.  Ann.  Pamph.  Supp.  No.  8,  p.  287),  de- 
fining persons  subject  to  military  law,  is  not 
repealed  by  section  6  of  the  selective  draft 
act,  declaring  that  a  violation  of  any  of  the 
provisions  of  the  act  shall  be  a  misdemeanor. 
Franke  v.  Murray  (U.  S.)  1918D-98. 

3.  The  provision  of  Selective  Draft  Act, 
§  6,  that  it  shall  be  a  misdemeanor  to  violate 
any  of  the  provisions  of  the  act  or  regula- 
tions made  thereunder,  does  not  preclude 
punishment  under  military  law  by  one  sub- 
ject thereto,  because  he  was  duly  certified 
into  the  service;  the  section  itself  expressly 
excepting  those  subject  to  military  law. 
Franke  v.  Murray  (U.  S.)  1918D-98. 

4.  Articles  of  War,  art.  109  (Fed.  St.  Ann. 
Pamph.  Supp.  No.  8,  p.  305),  requiring  every 
soldier  at  the  time  of  his  enlistment  to  take 
an  oath  of  allegiance,  applies  only  to  volun- 
tary enlistment,  and  one  certified  into  mili- 
tary service  under  the  selective  draft  act 
cannot  escape  liability  to  military  law  be- 
cause he  had  not  taken  the  required  oath. 
Franke  v.  Murray  (U.  S.)  1918D-98. 

(Annotated) 

5.  Review  of  draft  board. — While,  under 
the  selective  draft  act,  questions  of  exemp- 
tion on  account  of  membership  in  a  religious 
sect   opposed   to  war   are  for  determination 


36 


ANN.  CAS.  DIGEST   (1918C-1918E|. 


of  the  local  and  district  boards,  and  their 
linding  cannot  be  reviewed  by  the  courts, 
unless  they  were  without  jurisdiction  or  de- 
nied a  fair  hearing,  registrants  are  not  de- 
prived of  due  process  of  law.  Franke  v. 
Murray  (U.  S.)  1918D-!)8.  (Annotated) 

6.  The  determination  by  local  and  district 
boards  provided  for  by  the  selective  draft  act 
of  questions  of  exemption  is  conclusive,  and 
cannot  be  reviewed  by  the  courts,  unless  the 
boards  were  without  jurisdiction,  or  a  fair 
hearing  was  denied.  Franke  v.  Murray  (U. 
S.)    1918D-98.  (Annotated) 

7.  Desertion.— Selective  Draft  Act,  §  2, 
provides  that  all  persons  drafted  into  the 
service  of  the  United  States  shall,  from  the 
date  of  the  draft  or  acceptance,  be  subject 
to  the  laws  and  regulations  governing  the 
regular  army.  Articles  of  War  (Rev.  St. 
§  1342,  as  amended  by  Act  Aug.  29,  1916, 
c.  418,  §  3),  art.  2,  39  Stat.  651  (Fed.  St. 
Ann.  Pamph.  Supp.  No.  8,  p.  287),  declares 
that  all  officers  and  soldiers  belonging  to 
the  regular  army,  all  volunteers,  from  the 
date  of  their  muster  or  acceptance,  and  all 
other  persons  lawfully  called,  drafted,  or 
ordered  into  or  to  duty  or  for  training  in 
the  service,  from  the  dates  they  are  required 
by  the  terms  of  the  called  draft  or  order,  are 
persons  subject  to  military  law.  It  is  held 
that  one  certified  into  military  service  under 
the  draft  act  is  from  the  date  of  the  draft 
subject  to  military  law,  and  to  punishment 
as  a  deserter  on  account  of  his  refusal  to 
obey  the  summons.  Franke  v.  Murray  (U.  S.) 
1918D-98. 

8.  Receiving  property  of  soldier. — Under 
the  act  (Army  Act  1881,  §  156,  subsec.  1) 
penalizing  any  person  who  "buys,  exchanges, 
takes  in  pawn,  detains  or  receives"'  from  a 
soldier  any  government  stores  the  detention 
contemplated  is  from  the  government  and 
not  from  the  soldier.  PuUen  v.  Carlton 
(Eng.)  1918D-1201.  (Annotated) 

9.  Demand  and  refusal  are  not  necessary 
to  fix  the  liability  under  the  statute  for  de- 
taining property.  PuUen  v.  Carlton  (Eng.) 
1918D-1201.  (Annotated) 


ASSAULT. 

Liability  of  railroad  for  assault  on  passen- 
ger, see  Carriers  of  Passengers,  10. 

Necessity  of  finding  degree  of  crime  in  prose- 
cution for  assault  with  intent  to  kill, 
see  Verdict,  6,  7. 

1.  Assault  with  intent  to  kill— Indictment. 
— An  information,  which  alleges  that  accused 
did  commit  the  crime  of  assault  with  intent 
to  kill  a  person  named,  by  then  and  there 
wilfully  and  feloniously  shooting  at  the  per- 
son named  with  a  loaded  pistol  with  intent  to 
kill  him,  states  the  offense  denounced  by 
Pen.  Code,  §  285,  punishing  assaults  with 
intent  to  kill.  State  v.  Morse  (S.  D.)  1918C- 
570. 

2.  Issue  of  self-defense. — Where,  on  a  trial 
for  assault  with  intent  to  kill  by  shooting, 
accused  admitted  that,  in  pointing  the  re- 
volver at  prosecutor,  he  intended  to  "bluff" 


him  into  talking  »ensii>Iy,  and  claimed  tliat 
it  was  the  pressure  of  tiie  hand  of  prosecutor 
on  accused's  hand  in  which  the  revolver  was 
held  that  caused  its  discharge,  and  there 
was  evidence  that  prosecutor  had  a  few  min- 
utes previously  called  accused  a  vile  name, 
that  the  parties  had  separated,  and  accused 
was  searching  for  prosecutor  at  the  time 
of  the  shooting,  the  issue  of  self-defense  is 
not  raised  so  as  to  require  an  instruction 
thereon.    State  v.  Morse  (S.  D.)  1918C-570. 


ASSESSMENTS. 

See   Bexeficial   Associatioxs,   4-11. 
For  public  improvements,  see  Taxation,  49 
Of  tax,  see  Taxation,  5-20. 


ASSESSOR. 

Nature  of  duties,  see  Taxation,  5. 

ASSETS. 

Of  decedent's  estate,  see  Executors  and  Ad- 
ministrators,  12. 

ASSIGNMENTS. 

1.  What  May  Be  Assigned,  36. 

2.  What  Constitutes  Assignment,  37. 

3.  Construction    and    Effect    of    Assignment, 

37. 

See  AssiGXMEXTS  for  Benefit  of  Creditors. 

Of  accounts  to  mortgagee  as  collateral  se- 
curity, see  Chattel  Mortgages,  7,  8. 

Of  corporate  stock  as  security,  see  Pledge,  3. 

Of  lease,  see  Landlord  and  Tenant,  11,  16, 
17. 

Of  note  secured  by  deed  of  trust,  see  Mort- 
gages, 8,  9. 

Of  unlocated  certificate  of  public  lands,  see 
Public  Lands,  8. 

Giving  bill  of  sale  as  security  as  assignment 
within  condition  of  fire  insurance  poli- 
cy, see  Fire  Insurance,  9. 

Priority  between  lien  claimant  and  assignee 
of  fund  due  contractor,  see  Mechanics' 
Liens,  14,  15. 

Validity  of  assignment  of  corporate  stock  as 
collateral  security  as  against  trustee  in 
bankruptcy,  see  Bankruptcy,  2. 

1.  What  May  Be  Assigned. 

1.  Prohibiting  assignment  to  nonresident 
for  collection. — Sess.  Laws  1910,  §  2,  c.  14, 
p.  19  (section  2912,  Rev.  Laws  1910),  inhibit- 
ing any  assignment  of  a  claim  or  debt  for  the 
purpose  of  attachment,  garnishment,  or  other 
mesne  process,  outside  of  this  state,  when  the 
creditor,  the  debtor  (being  a  citizen  of  this 
state),  and  the  person  or  corporation  owing 
the  money  intended  to  be  reached  by  such 
process  are  all  within  the  jurisdiction  of  this 
state,  is  within  the  police  power  of  the  state 


ASSIGNMENTS. 


37 


and  is  constitutional  and  valid  to  the  extent 
of  such  inhibition. 

(a)  As  to  whether  the  furthei-  provision 
in  said  section  that,  in  such  situation  of  all 
such  parties,  any  assignment  of  a  claim  or 
debt  "which  is  thereafter  attempted  to  be 
collected  out  of  the  wages  or  personal  earn- 
ings of  the  debtor,  in  courts  outside  of  the 
state  of  Oklahoma,"  is  prohibited,  is  constitu- 
tional and  valid,  is  not  determined;  but  its 
constitutionality  is  doubted.  St.  Louis,  etc. 
R.  Co.  V.  Crews   (Okla.)   1918C-823. 

2.  Assignment  of  statutory  liability  of  cor- 
porate officer. — Claims  against  corporate  offi- 
cers arising  from  the  incurring  of  debts  by 
the  corporation  while  less  than  half  its  capi- 
tal stock  was  subscribed  with  their  knowl- 
edge, under  the  liability  therefor  imposed 
by  St.  1913,  §  1774n,  are  assignable,  since 
such  section  imposes  a  contractual  relation  on 
the  officers  and  not  a  penalty  in  its  strict 
sense.      Weston    v.   Dahl    (Wis.)    1918C-922. 

Progress  pajnnent. — ^An  assignment  of  a 
progress  payment  for  work  done  under  a 
contract  for  a  public  improvement  is  valid — 
the  municipality  not  objecting — as  against 
any  rights  of  a  subcontractor  who  thereafter 
served  notice  on  the  municipality  to  withhold 
payment,  as  permitted  by  Cal.  Code,  Civ. 
Proc.  §  1184,  although  such  assignment  did 
not  receive  the  consent  of  the  board  of  pub- 
lic works,  and  the  contract  expressly  pro- 
vides that  without  such  consent  the  contrac- 
tor shall  not  "either  legally  or  equitably 
assign  any  of  the  moneys  payable  under  the 
contract  or  his  claim  thereto."  Portuguese- 
American  Bank  of  San  Francisco  v.  Welles 
(U.  S.)  1918D-643.  (Annotated) 

2.  What  Constitutes  Assignment. 

4.  A  written  order  by  a  contractor  to  a 
county  to  pay  a  bank  money  due  on  a  month- 
ly estimate  of  work  done  and  "all  retained 
percentage"  was  an  "equitable  assignment" 
of  the  designated  money.  Wasco  County  v. 
New  England  Equitable  Ins.  Co.  (Ore.) 
1918E-656. 

5.  Building  contracts. — ^Where  a  city,  which 
has  contracted  for  paving  work,  retains,  un- 
der the  contract,  from  an  amount  paid  the 
contractor,  a  fund  to  satisfy  the  claim  of  a 
subcontractor,  which  is  one  of  the  items  or 
payments  shown  on  the  voucher  and  war- 
rant check  by  which  final  settlement  with 
and  payment  to  the  contractor  are  made, 
and  the  indorsement  of  the  warrant  check 
by  the  contractor  is  declared  to  constitute 
"a  release  for  the  items  and  amounts  stated 
in  the  body  of  the  warrant,"  the  effect  of 
the  indorsement  of  the  warrant  is  that  of  an 
equitable  assignment  to  the  subcontractor  of 
the  fund  retained,  and  the  assignees  for  the 
benefit  of  the  creditors  of  the  contractor  can- 
not claim  the  fund  against  the  subcontractor 
in  the  absence  of  evidence  that  the  claim 
has  been  fully  discharged.  Kellas  v.  Slack, 
etc.  Co.   (Md.)   1918D-640.  (Annotated) 

6.  The  provision,  in  a  city's  contract  for 
paving  work,  that  the  city  may  retain  from 
payments  due  the  contractor  sufficient  to  sat- 
isfy claims  filed  for  labor  and  material  for 


the  work,  does  not  give  a  subcontractor  a  lien 
on  the  money  retained  by  the  city,  and  does 
not  operate  as  an  equitable  assignment  of 
the  fund.  Kellas  v.  Slack,  etc.  Co.  (Md.) 
1918D-640.  (Annotated) 

7.  Where  a  bank  pays  and  takes  assign- 
ments of  labor  and  material  claims,  as  the 
materialman  or  laborer's  claim  against  the 
contractor's  bond  is  ancillary  to  and  depend- 
ent upon  his  right  against  the  contractor, 
an  assignment  of  the  right  against  the  con- 
tractor operates  as  an  equitable  assignment 
of  the  right  against  the  bond.  Northwestern 
Nat.  Bank  v.  Guardian  Casualty,  etc.  Co. 
(Wash.)   1918D-644.  (Annotated) 

3.  Construction  and  effect  of  Assignment. 

8.  Validity  against   garnishing  creditor. — 

\^^^ere  a  defendant  corporation  assigned  to 
a  bank  the  proceeds  of  a  contract  due  and  to 
become  due  for  furnishing  materials  and 
labor  to  a  building  contractor,  such  assign- 
ment is  valid  as  against  a  garnishment  of 
the  funds  in  the  hands  of  the  building  con- 
tractor. Hall  V.  Kansas  City  Terra  Cotta  Co. 
(Kan.)    1918D-605.  (Annotated) 

9.  Such  an  assignment  is  not  a  chattel 
mortgage  requiring  registration  to  be  valid 
against  the  claim  of  another  creditor  pro- 
ceeding by  writ  of  garnishment.  Hall  v. 
Kansas  City  Terra  Cotta  Co.  (Kan.)  1918D- 
605.  (Annotated) 

10.  Priority  of  assignee. — Assignment  to  a 
bank  of  all  moneys  to  become  due  to  con- 
tractors as  security  for  notes  taken  and  filed 
with  the  city  comptroller  prior  to  any  notice 
that  labor  and  material  claims  have  not  been 
or  will  not  be  paid,  the  contract  containing 
no  provision  for,  an  absolute  reserve  for 
labor  and  material  claims,  but  only  permit- 
ting the  city  to  withhold  payment  imtil  sat- 
isfied that  all  such  claims  have  been  paid, 
and  nothing  having  been  held  up  by  the  city 
at  the  time  the  assignments  were  made, 
must  be  treated  as  a  valid  appropriation  to 
the  bank's  notes  of  the  fund  afterward  paid 
into  court  by  the  city,  superior  to  any  right 
of  laborers  or  materialmen,  and  hence 
superior  to  any  right  of  subrogation  in  the 
surety,  as  the  bank  has  a  superior  equity. 
Northwestern  Nat.  Bank  v.  Gu«rdian  Casual- 
ty,  etc.    Co.    (Wash.)    1918D-644. 

(Annotated) 

11.  Assignments  of  labor  and  material 
claims  are  not.  because  of  the  agreement  be- 
tween the  contractor  and  bank  to  advance 
money  for  this  purpose,  extinguished,  so  far 
as  the  bond  is  concerned,  upon  their  payn>ent 
by  the  bank,  but  the  bank  had  the  same 
right  to  purchase  and  take  assignment  of  the 
claim  as  anyone  else.  Northwestern  Nat. 
Bank  v.  Guardian  Casualty,  etc.  Co.  (Wash.) 
1918D-644.  (Annotated) 

12.  Where  a  bank  pays  and  takes  assign- 
ments of  the  claims  for  labor  and  material 
under  an  agreement  with  the  contractor,  the 
surety  cannot  claim  that  because  it  was  not 
surety  for  claims  for  money  advanced  by  the 
bank  to  the  contractor,  but  only  for  labor 
and  material  claims,  as  between  the  bank  and 
the  surety,  a  fund  paid   into  court  by  the 


38 


ANK  CAS..  DIGEST  (1918C-1918E). 


city  should  be  first  applied  to  tile  assigned 
claims  and  not  the  contractor's  prior  claim. 
Northwestern  Nat.  Bank  v.  Guardian  Casual- 
ty,  etc.   Co.    (Wash.)    1918D-C44. 

(Annotated) 

13.  The  claims  of  two  subcontractors  and 
their  bookkeeper,  not  being  lienable  claims, 
are  not  assertable  against  either  the  fund 
paid  into  court  by  the  city  or  agaijist  the 
contractor's  bond  to  the  exclusion  of  the 
surety's  right  of  subrogation,  and  the  as- 
signment of  their  claims  carry  no  rights  ex- 
cept rights  of  action  against  the  contractors 
personally.  Northwestern  Nat.  Bank,  v. 
Guardian  Casualty,  etc.  Co,  (Wash.)  1918D- 
644.  (Annotated) 

14.  Money  due  on  a  contract,  but  retained 
by  a  county  until  completion  and  acceptance 
of  work,  was  by  written  order  assigned  by 
the  contractor  to  a  bank  in  consideration  of 
money  loaned  the  contractor  and  used  by 
him  to  pay  for  labor  and  material  which  he 
was  bound  by  his  contract  to  pay  for.  The 
contractor's  bond,  as  required  by  law,  obliged 
the  surety  to  pay  for  labor  and  material 
and  also  to  complete  the  work.  The  con- 
tract provided,  as  required  by  Laws  1913,  p. 
251.  for  retention  of  the  money  assigned  until 
completion  and  acceptance  of  the  work.  It 
is  held,  that  on  the  contractor's  default,  until 
claims  for  labor  and  material  were  paid,  the 
county's  right  to  the  fund  assigned  was  su- 
perior to  that  of  the  assignee  bank,  and  that 
when  the  contractor's  surety  paid  for  labor 
and  material  as  required,  it  was  entitled  to 
be  subrogated,  as  against  the  bank,  to  the 
rights  of  the  county  as  of  the  date  of  its  con- 
tract, and  hence  the  surety's  right  to  the 
fund  was  superior  to  the  ^signment  to  the 
bank,  which  was  bound  to  know,  when  it  vol- 
untarily loaned  its  money,  of  the  surety's 
equity  in  the  funds  reserved.  Wasco  County 
V.  New  England  Equitable  Ina.  Co.  (Ore.) 
1918E-656. 


ASSIGNMENTS    FOR    BENEFIT    OF 
CREDITORS. 

See  AssiGXMESfTS ;  Bankruptcy. 

1.  Rights  of  assignee. — Assignees  for  the 
benefit  of  the  creditors  of  a  contractor  with  a 
city  for  paving  work  are  not  bona  fide  pur- 
chasers for  value,  but  stand  in  the  place  of 
the  assignor,  and  take  the  property  subject 
to  all  equities  against  it.  Kellas  v.  Slack, 
etc.  Co.  (Md.)  1918D-640. 


ASSUMPSIT. 

Implied  contract  to  pay  broker's  commission, 

see  BB0KE3JS,  4,  5. 
Waiver   of   tort  and   suit  in  assumpsit,   see 

TOETS,   2. 

1.  Foundation  of  action. — The  action  for 
money  had  and  received  was  invented  to  se- 
cure relief  from  restrictions  of  the  common- 
law  forms  of  procedure  which  afiforded  no 
remedy  in  too  many  cases  of  merit.  The 
action  is  a  modified  form  of  the  action  of  as- 
sumpsit. It  is  founded  on  the  principle  that 
ho  one  ought  to  unjustly  enrich  himself  at 
the  expense  of  another,  and  the  gist  of  the 
action  is  that  the  defendant  has  received 
money  which  in  equity  and  good  conscience 
should  have  been  paid  to  the  plaintiff,  and 
under  such  circumstances  that  he  ought,  by 
the  ties  of  natural  justice,  to  pay  over.  Hey- 
wood  V.  Northern  Assut.  Co.  (Minn.)  19181)- 
241.  (Annotated) 

2.  Money  had  and  received. — Whether 
the  action  for  money  liad  and  received  can  be 
maintained  by  a  claimant  of  monej',  to  re- 
cover from  another  claimant  who  has  re- 
ceived the  money,  is  not  involved  in  this  case. 
Heywood  v.  Northern  Assur.  Co.  (Minn.) 
1918D-241. 

3.  The  question  in  this  case  is:  Where  one 
person  procures  a  payment  of  money,  which 
he  knows  is  due  to  another,  can  the  person 
who  was  entitled  to  receive  the  money  main- 
tain an  action  against  him  for  money  had 
and  received?  The  action  lies  under  the 
facts  of  this  case,  and  the  question  stated 
must  receive  an  affirmative  answer.  Hey- 
wood V.  Northern  Assur.  Co.  (Minn.)  1918C- 
241.  (Annotated) 

4.  The  action  does  not  fail  because  tne 
payment  did  not  destroy  plaintiff's  right  of 
action  against  his  debtor  who  has  paid  the 
money  to  defendant.  Nor  is  privity  or  prom- 
ise necessary  to  sustain  the  action.  To  say 
that  the  law  supplies  the  promise  is  but  to 
indulge  in  legal  fiction.  There  is  no  place  for 
legal  fiction  in  modern  law.  Hevwood  v. 
Northern  Assur.  Co.  (Minn.)  1918D-241. 

(Annotated) 

5.  The  decision  of  the  courts  of  Michigan, 
in  which  state  this  cause  of  action  arose,  are 
not  out  of  accord  with  this  ruling.  Heywood 
V.   Northern   Assur.   Co.    (Minn.)    1918i)-241. 

6.  Necessity  of  quantum  meruit  count. — 
A  quantum  meruit  count  is  now  obsolete,  and 
is  no  longer  necessary  in  an  action  in  as- 
sumpsit containing  the  common  counts  for 
work  and  labor  done,  etc.  Parkersbnrg,  etc. 
Sand  Co.  v.  Smith  (W.  Va.)   1918E-449. 


ASSIGNMENTS  OF  ERROR. 


ATTACHMENT. 


See  Appeal  and  Ebroe,  30-33. 


ASSOCIATIONS. 

See  Benefioial  Associations  ;  Btni-WNO  and 
Loan  Associations;  Cobpobations. 


See  EXECUTIOXS;  Gabnishment. 

1.  Levy  on  community  property. — Where 
an  attachment  is  levied  upon  the  community 
property  alone,  it  is  not  necessary  to  name 
the  wife  as  a  party  to  the  attachment. 
Godefroy  v.  Hupp  (Wash.)  1918E-494. 

2.  Time     for     moving     for    dissolution.— 


ATTESTATION— ATTORXEYS. 


39 


."^JTiere  no  Jtnotion  was  made  to  dissolve  an  at- 
tachment because  levied  upon  community 
property  without  naming  the  wife  as  a  party 
to  it,  and  the  record  shows  no  motion  to  dis- 
solve the  attachment  for  that  reason,  it  is 
too  late  to  seeli  such  dissolution  after  it  was 
carried  into  the  judgment.  Godefroy  v. 
Hupp  (Wash.)   1918E-404. 

3  Effect  of  judgment  not  providing  for 
sale. — Under  L.  0.  L.  §  308,  providing  that, 
if  judgment  is  recovered  for  plaintiff,  the 
court  shall  order  the  attached  property  sold 
to  satisfy  his  demands,  a  judgment  for  the 
amount  demanded,  not  providing  that  the 
attached  property  should  be  sold  to  satisfy 
it  or  preserve  the  attachment  lien,  operates 
as  a  waiver  of  the  lien.  Smith  v.  D wight 
(Ore.)    1918D-563. 

4.  Description  of  property. — Under  a  de- 
fault judgment,  not  providing  that  the  at- 
tached property  shall  be  sold  to  satisfy  it,  an 
attachment  execution  commanding  the  sher- 
iff to  sell  the  attached  realty,  describing  the 
land  as  in  "10  west,"  without  giving  the 
range  or  county  in  which  it  is  situated,  is  not 
authorized  by  the  judgment.  Smith  v. 
Dwight  (Ore.)   1918D-563. 

5.  Necessity  of  levy. — A  levy  of  a  writ  is 
not  an  essential  requirement,  where  there  is 
a  pre-existine  lien  of  the  judgment  upon  the 
property  to  be  sold.  Smith  v.  Dwight  (Ore.) 
1918D-563. 

6.  Effect  of  failure  to  docket  judgment. — 
Under  L.  0.  L.  §  233,  directing  that,  when 
the  writ  of  execution  is  against  the  property 
of  the  debtor,  it  shall  be  executed  by  levy, 
according  to  section  300,  which  requires  a  writ 
of  attachment  to  be  executed  by  delivering 
to  the  cotmty  clerk  the  designated  certificate 
showing  that  the  property  has  been  attached, 
the  failure  to  docket  the  judgment  in  the  lien 
docket  or  to  make  any  further  levy  is  a  fail- 
ure to  levy,  where  the  attachment  lien  has 
been  waived.  Smith  v.  Dwight  (Ore.)  1918D- 
563. 


ATTESTATION. 

Of  wills,  see  Wills,  3,  4. 


ATTORNEYS. 

1.  Status,  Admission  and  Right  to  Practice, 

39. 

2.  Relation  of  Attorney  and  Client,  39. 

3.  Compensation  of  Attorneys,  40. 

4.  Lien  of  Attorneys,  40. 

5.  Disbarment,  41. 

6ee  ARcrMEXT  and  Conduct  of  Counsel. 

Attorney  drawing  will  who  is  also  partner  of 
attorney  for  proponents  of  will  as  com- 
petent witness  in  probate  proceedings, 
see  Witnesses,  1. 

Briefs  of  counsel  on  appeal,  see  Appeal  and 
Error,  34. 


.Criticism  of  opposing  attorney  in  law  suit 
as  privileged  communication,  see  Libel 
AND  Slander,  12,  13. 

Effect  of  war  or  irrevocable  power  of  attor- 
ney, see  Aliens,  4. 

Power  of  attorney,  see  Agency,  5. 

Eight  of  accused  to  counsel  before  pleading, 
see  Criminal  Law,  3.  -    o 

Validity  of  contract  contemplating  practice 
of  law  by  corporation,  see  Contbacts, 
15. 

1.  Status,  Admission  and  Right  to  Practice. 

1.  What  constitutes  practice  of  law. — A 
contract  whereby  a  corporation  agreed  to  use 
its  best  efforts  to  enforce  claims  placed  with 
it,  for  collection,  which  contract  provided 
for  payment  of  an  attorney's  fee  to  the  cor- 
poration on  any  claim  placed  with  its  legal 
department  for  enforcement  and  offered  free 
legal  advice,  constituted  an  undertaking  by 
the  corporation  to  maintain  a  law  depart- 
jnent,  and  through  such  department- give  free 
legal  advice  and  to  perform  the  services  of 
iin  attorney  in  collecting  claims;  and  hence 
by  the  execution  thereof  the  corporation  held 
itself  out  to  be  lawfully  qualified  to  practice 
law.  Creditors  Nat.  Clearing  House  v.  Bann- 
wart  (Mass.)   1918C-130. 

2.  Relation  of  Attorney  and  Client. 

2.  Estoppel  to  deny  validity  of  contract'  of 
employment. — Where  a  husband  contracted 
with  his  attorney  to  conduct  litigation  touch- 
ing the  community  property,  agreeing  to  pay 
twenty- five  per  cent  of  the  proceeds,  and  the 
wife  showed  interest  in  the  litigation  when 
the  attorney  saw  her  and  she  inquired  aa  to 
the  progress  of  the  case,  she  being  a  party 
plaintiff  or  defendant  to  every  suit,  such 
wife  may  not  deny  the  validity  of  the  attor- 
ney's contract  for  compensation  with  the 
husband  on  the  ground  she  did  not  sign  it. 
Thomas  v.  Scougale  (Wash.)   1918C-452. 

3  Validity  of  transaction  with  client. — An 
attorney  is  held  to  a  strict  accountability  in 
all  his  professional  relations  with  his  clients, 
and  any  undue  advantage  gained  by  the  at- 
torney over  his  client  by  deception  or  undue 
influence  while  the  relation  exists  will  not  be 
upheld  by  the  courts.  Armstrong  v.  Morrow 
(Wis.)    1918E-1156. 

4.  ^^Tiere  defendant  was  deceased's  inti- 
mate friend  and  attorney  and  advised  and 
assisted  him  in  legal  matters  and  business 
transactions  for  many  years,  it  is  incumbent 
upon  him  to  show  that  in  all  fiduciary  deal- 
ings with  deceased  he  acted  in  good  faith  and 
without  disadvantage  to  his  client,  and  the 
burden  is  upon  him  to  show  affirmatively, 
either  that  he  paid  an  adequate  consideration 
for  an  assignment  of  a  mortgage,  or  that  a 
gratuity  was  intended,  and  that  no  advan- 
tage was  taken  of  the  confidential  relations. 
Armstrong    v.    Morrow    (Wis.)    1918E-1156. 

(Annotated) 

5.  That  a  client  lived  for  four  years  after 
an  assignment  of  a  mortgage  to  his  attorney 
without  taking  steps  to  set  the  assignment 
aside  does  not  bar  an  action  bv  his  executor. 


40 


ANN.  CAS.  DIGEST  (1918C-1918E). 


where  the  confidential  relation  and  undue  in- 
fluence existing  before  the  assignment  con- 
tinued thereafter  to  about  the  time  the  client 
died,  and  there  was  nothing  to  arouse  him 
to  action.  Armstrong  v.  Morrow  (Wis.) 
I9I8E-II06. 

3.  Compensation   of   Attorneys. 

6.  Fee  for  collection  of  claim  against  gov- 
ernment.— So  much  of  the  Act  of  March  4, 
1915  (38  St.  L.  996,  eh.  140,  §  4)  as  provides 
that  not  more  than  twenty  per  cent  of  the 
sum  thereby  appropriated  to  the  payment  of 
civil  war  damage  claims  shall  be  paid  to  an 
attorney  as  a  fee  for  collecting  the  claim  is, 
as  to  contracts  made  before  its  enactments, 
invalid.  Newman  v.  Moyers  (D.  C.)  1918E- 
528.  (Annotated) 

7.  Act  Cong.  March  4,  1915,  c.  140,  §  4,  38 
Stat.  996,  prohibiting  an  amount  in  excess  of 
twenty  per  cent  of  the  amount  collected  to 
be  paid  to  the  attorney  collecting  Civil  War 
claims  included  under  the  bill,  is  unconsti- 
tutional and  invalid,  under  Const.  U.  S. 
Amend.  6,  as  to  attorneys  who  have  per- 
formed their  services  and  secured  the  allow- 
ance of  claims  prior  to  its  enactment,  since 
they  have  then  a  vested  property  right, 
which  cannot  be  destroyed  by  arbitrary  act 
of  Congress.  Moyers  v.  Memphis  (Tenn.) 
1918C-854.  (Annotated) 

8.  Provision  of  Act  Cong.  March  4,  1915, 
c.  140,  §  4,  38  Stat.  996,  making  appropria- 
tion fpr  payment  of  a  claim  against  the 
United  States,  previously  allowed  by  the 
court  of  claims,  limiting  attorneys'  fees  for 
services  in  connection  with  the  claim  to 
twenty  per  cent  of  the  amount  appropriated, 
and  making  it  unlawful  to  receive  more,  pre- 
vents action  for  more,  the  prior  contract  to 
pay  the  attorneys,  for  prosecuting  the  claim, 
a  third  of  "the  amount  which  may  be  allowed 
on  said  claim,"  and  providing  for  the  govern- 
ment paying  the  claim  through  them,  and 
giving  them  a  lien  on  the  payment  for  the 
fee,  creating  fao  debt  for  services  till  the  ap- 
propriation was  made;  the  phrase  in  the  con- 
tract "the  amount  which  may  be  allowed  on 
said  claim,"  referring  to  the  amount  realized 
from  the  government,  and  not  the  mere  al- 
lowance by  the  court  of  claims.  Ralston  v. 
Dnnaway   (Ark.)   1918C-870.  (Annotated) 

9.  Contingent  fees. — ^While  the  courts  do 
not  always  favor  contingent  fees,  and  look 
with  some  suspicion  upon  them,  especially 
where  the  amount  agreed  to  be  paid  repre- 
sents fifty  per  cent  of  the  total  claim,  still 
the  trend  of  judicial  decision  is  in  favor  of 
upholding  and  enforcing  such  contracts, 
where  no  question  of  fraud,  misrepresenta- 
tion, or  unfair  dealing  is  raised.  Moyers  v. 
Memphis  (Tenn.)  1918C-854. 

10.  A  contract  between  an  attorney  and  a 
city,  by  which  the  attorney  is  to  receive  fifty 
per  cent  of  the  amount  collected  from  the 
government  on  a  claim  arising  out  of  the 
Civil  War.  is  legal  and  valid,  and  not  against 
public  policy.  Moyers  v.  Memphis  (Tenn.) 
1918C-854. 

11.  An  attorney  whose  client  contracted  to 
pay  him  twenty-five  per  cent  of  the  proceeds 


of  litigation  touching  timber  lands,  and  who 
recovered  for  the  client,  by  joining  in  the 
foreclosure  suit  of  the  client's  mortgagee,' a 
one-third  interest  in  twenty  acres  of  land  not 
covered  by  the  mortgage  nor  by  the  sheriff's 
deed  after  foreclosure  sale,  is  entitled  to  a 
quarter  interest  in  one-third  of  the  twenty 
acres.  Thomas  v.  Scougale  (Wash.)  1918C- 
452. 

12.  A  lawyer  whose  client  contracted  to 
pay  him  twenty-five  per  cent  of  the  proceeds 
of  any  suit,  settlement,  or  compromise  of  the 
client's  claim  to  certain  property  or  dam- 
ages, and  who  recovered  money  and  property 
for  such  client  through  joining  in  a  suit  not 
originally  contemplated,  may  recover  his 
share  of  the  proceeds.  Thomas  v.  Scougale 
(Wash.)   1918C-452. 

13.  Reasonableness  of  amount. — A  fee  of, 
say,  $33,500  may  be  well  earned  in  the  de- 
fense of  a  suit  for  interdiction,  brought  by 
the  children  and  heirs  against  their  mother, 
contested  during  a  period  of  nearly  three 
years,  involving  the  civil  life  and  the  liberty 
of  the  defendant  and  her  control  of  an  estate 
appraised  at  nearly  $350,000,  and  terminat- 
ing in  its  abatement  by  reason  of  the  death 
of  the  defendant.  Pons's  Succession  (La.) 
1918D-939.  (Annotated) 

4.  Lien  of  Attorneys. 

14.  Necessity  of  notice. — The  right  to  an 
attorney's  lien  depends  upon  notice  of  a  lien 
upon  the  judgment  being  served  upon  the 
judgment  debtor  and  filed,  under  L.  0.  'L.  § 
1088.  Townsend  v.  Chamberlain  (Ore.) 
1918C-330. 

15.  Settlement  in  violation  of  lien. — Un- 
der L.  0.  L.  §  1088,  touching  attorney's  liens, 
where  the  judgment  debtor  in  good  faith 
pays  or  satisfies  the  judgment  before  notice 
of  the  lien  of  the  judgment  creditor's  attor- 
ney, the  latter  cannot  enforce  the  judgment 
as  against  him.  Townsend  v.  Chamberlain 
(Ore.)  1918C-330. 

16.  Where  defendant  judgment  creditor's 
attorney  made  a  motion,  supported  by  affida- 
vits, asserting  his  claim  of  attorney's  lien 
and  that  the  settlement  of  the  judgment  by 
his  client,  the  judgment  creditor,  was  in 
fraud  of  his  rights,  the  proceeding  on  the  mo- 
tion not  being  part  of  the  suit  to  set  aside 
the  judgment  as  fraudulent,  plaintiffs,  the 
judgment  debtors,  not  being  served  with  no- 
tice and  not  appearing,  while  the  parties  in 
interest  were  different  from  those  in  the  ac- 
tion in  which  the  judgment  was  rendered,  the 
order  of  the  court  canceling  the  satisfaction, 
the  affidavits,  stating  no  fact  indicating  that 
it  was  obtained  fraudulently,  or  that  the  set- 
tlement was  invalid  as  to  the  judgment  debt- 
ors, and  authorizing  the  collection  of  the  re- 
mainder of  the  judgment  by  the  attorney,  is 
a  nullity.  Townsend  v.  Chamberlain  (Ore.) 
1918C-330. 

17.  Action  under  federal  employers'  liabil- 
ity act. — ^As  the  federal  employers'  liability 
act  authorizes  actions  in  the  state  courts 
and  makes  the  state  practice  applicable,  Gen. 
St.  Minn.  1913,  §  4955,  giving  attorneys  a 
lien  on  the  cause  of  actions  of  their  clients. 


AUCTION— AUTOMOBILES. 


41 


is  properly  applied  to  an  action  brought  in 
the  courts  of  that  state  under  the  federal 
act,  where  defendant  settled  the  claim  with 
the  client.  Dickinson  v.  Stiles  (U.  S.)  1918E- 
501.  (Annotated) 

5.  Disbarment. 

18.  Power  of  courts. — Courts,  independent 
of  statute,  have  authority  to  punish  attor- 
neys for  professional  misconduct.  Chreste  v. 
Com.   (Ky.)   1918E-122. 

19.  txtbunds — Soliciting  business. — ^An  at- 
torney who,  knowing  of  testimony  material 
to  a  litigant,  discloses  same  to  counsel  for 
such  litigant  only  upon  condition  that  he  be 
employed  as  associate  counsel,  is  guilty  of 
misconduct  for  which  he  should  be  punished. 
Chreste  v.  Com.  (Ky.)  1918E-122. 

(Annotated) 

20.  An  attorney  who  employs  a  solicitor  at 
a  weekly  salary  with  an  unlimited  expense 
account  to  procure  such  attorney's  employ- 
ment in  personal  injury  litigation  is  guilty 
of  misconduct  punishable  by  suspension  or 
disbarment.  Chreste  v.  Com.  (Ky.)  1918E- 
122.  (Annotated) 

21.  New  TriaL — ^WTiere  an  attorney  sub- 
mitted his  response  in  disbarment  proceed- 
ings under  unusual  circumstances,  at  a  time 
when  he  was  in  such  a  mental  state  as  not  to 
fully  appreciate  its  effect  and  under  a  misun- 
derstanding as  to  the  punishment  to  be  in- 
flicted, it  is  held  that  he  was  entitled  to  a 
new  trial.    Chreste  v.  Com.  (Ky.)  1918E-122. 


AUCTION. 

Agreement   to   purchase   jointly   at   auction, 
see  Co^'TKACTS,  16,  17. 


AUTOMOBIIiES. 

1.  Regulation  of  Motor  Vehicles,  41. 

2.  Mutual  Rights  and  Duties  on  Highway: 

a.  Care  Required  of  Pedestrians,  41. 

b.  Responsibility  of  Owner   for  Driver's 

Acts,  41. 

c.  Liability  to  Guests,  42. 

d.  Actions,   42. 

3.  Injuries  to  Motor  Vehicles  or  Occupants, 

42. 

4.  Crimes  Incident  to  Operation,  43. 

Automobile  insurance,  see  Ixsubaxce,  39-44. 

Automobile  sales  agency  contracts,  see  Agen- 
cy, 1-4,   10,   11. 

Care  of  automobiles  on  ferry  boats,  see  Fer- 
ries, 4-6 

Excessiveness  of  damages  in  action  for  in- 
juries sustained  by  collision  between 
railroad  train  and  automobile,  see  Da^i- 
AGES,   7. 

Liability  of  city  for  personal  injury  result- 
ing from  permitting  use  of  streets  for 
racing  and  testing  automobiles,  see 
Streets  axd  Highways,  10. 


Measure  of  damages  for  conversion,  see  Cox- 

VERSION,    5. 

Proving  value  of  automobile,  see  Evidence, 
7. 

Rescission  of  contract  for  purchase  of  auto- 
mobile, see  Rescission,  Cancellation 
AND  Reformation,  7. 

1.    Regulation  of  Motor  Vehicles. 

1.  Speed  regulation. — Section  12603,  Gen- 
eral Code,  prohibiting  the  operation  of  a 
motor  vehicle  "at  a  speed  greater  than  is 
reasonable  or  proper,  having  regard  for  width, 
traffic,  use  and  the  general  and  usual  rules  of 
such  road  or  highway,  or  so  as  to  endanger 
the  property,  life  or  limb  of  any  person."  is 
a  valid  statute.  State  v.  Schaefler  (Ohio) 
1918E-1137. 

2.  Requiring  stop  on  signal. — Acts  1911, 
pp.  326,  327,  §§  8,  9,  requiring  operators  of 
automobiles  to  stop  when  signaled  by  a  driv- 
er of  horses,  etc.,  is  constitutional.  Hays  v. 
Hogan  (Mo.)   1918E-1127. 

2.  Mutual  Rights  and  Duties  on  Highways. 

a.  Care  Required  of  Pedestrians. 

3.  One  passing  in  front  of  a  standing 
street  car  has  a  right  to  assume  that  no  au- 
tomobile will  come  from  the  rear  of  the  car 
on  the  left-hand  side  of  it,  in  violation  of 
ordinance.  Harris  v.  Johnson  (Cal.)  1918E- 
560. 

4.  The  evidence  is  held  to  be  sufficient  to 
exonerate  from  contributory  negligence  one 
who  having  passed  in  front  of  a  standing 
street  car  wa«  struck  by  an  automobile  com- 
ing from  the  rear,  and  on  the  left-hand  side 
of  the  car.  Harris  v.  Johnson  (Cal.)  1918Ei- 
560. 

b.  Responsibility  of  Owner  for  Driver's  Acts. 

5.  Slight  deviations  from  route  as  exonerat- 
ing owner. — Slight  deviations  from  route  or 
slight  incidental  things  done  by  a  chauffeur 
for  his  own  benefit  do  not  exonerate  the  mas- 
ter for  negligence  of  the  chauffeur.  Guthrie 
V.  Holmes   (Mo.)   1918D-1123.       (Annotated) 

6.  Presumption  that  driver  was  in  scope  of 
employment. — In  an  action  for  injuries  from 
collision  with  an  automobile,  proof  that  the 
automobile  belonged  to  defendant,  and  was 
being  operated  by  defendant's  regularly  em- 
ployed chauffeur,  raises  a  presumption  that 
the  chauffeur  was  acting  within  the  scope  of 
his  employment.  Guthrie  v.  Holmes  (Mo.) 
1918D-1123.  (Annotated) 

7.  In  an  action  against  the  owner  of  an  au- 
tomobile for  death  caused  by  the  automobile 
Avhile  it  was  being  driven  by  his  chauffeur, 
evidence  of  ownership  of  the  car  and  of  the 
fact  of  employment  of  the  chauffeur  by  such 
owner  is  prima  facie  evidence  of  the  owner's 
responsibilitv  for  the  accident.  Rose  v. 
Balfe  (X.  Y.')   1918D-218.  (Annotated) 

8.  Rebutting  presumption. — In  an  action 
against  the  owner  of  an  automobile  for  death 
caused  by  the  automobile  while  it  was  being 
driven  by  his  chauffeur,  the  prima  facie  ev- 
idence of  the  owner's   responsibility  for  the 


42 


ANN.  CAS.  DIGEST  (1918C-1918E). 


afe(?ident  established  by  evidence  of  the  own- 
ership of  the  car  and  the  employment  of  the 
chauffeur  is  overcome  by  substantial  evidence 
rebutting  such  responsibility.  Rose  v.  Balfe 
(N.  Y.)  1918D-238.  (Annotated) 

9.  Evidence  that  the  owner  of  an  automo- 
bile on  leaving  the  city  told  his  chauffeur  at 
1  o'clock  to  deliver  several  friends  and  drive 
home,  a  trip  which  would  take  an  hour,  and 
the  chauffeur  ran  into  and  injured  plaintiff 
at  7.30  P.M.,  overcomes  the  presumption 
that  the  chauffeur  was  acting  within  the 
scope  of  his  employment  at  the  time  of  the 
accident.  Guthrie  v.  Holmes  (Mo.)  191 SD- 
1123.  (Annotated) 

10.  Where  the  owner  of  an  automobile  di- 
rects his  chauffeur  to  put  the  machine  in 
dead  storage  under  instructions  not  to  use  it 
without  permission,  the  chauffeur  has  no  im- 
plied authority  to  violate  orders  and  without 
the  owner's  knowledge  or  consent  take  the 
car  out  for  the  purpose  of  testing  it;  and, 
such  use  being  unauthorized,  the  owner  is  not 
liable  for  an  accident  resulting  therefrom. 
Rose  V.  Balfe  (N.  Y.)  1918D-238. 

(Annotated) 

11.  In  an  action  by  one  injured  by  an  auto- 
mobile in  possession  of  defendant's  chauffeur, 
evidence  held  insufficient  to  show  that  the 
chauffeur  was  acting  within  the  scope  of  his 
employment  when  he  ran  into  plaintiff,  and 
submission  of  such  question  to  the  jury  was 
error.    Guthrie  v.  Holmes  (Mo.)  1918D-1123. 

(Annotated) 

12.  Liability  for  negligence  of  minor  son. — 
There  is  no  presumption  that  a  minor  child 
is  the  agent  of  the  -father  in  driving  the  lat- 
ter's  car,  or  that  when  driving  such  car  he  is 
acting  within  the  scope  of  his  authority. 
Hays  V.  Hogan  (Mo.)  1918E-1127. 

(Annotated) 

13.  A  father  is  not  liable  for  the  negli- 
gence of  a  minor  son  in  driving  an  automo- 
bile purchased  for  the  use  of  the  family,  sole- 
ly in  furtherance  of  the  child's  own  business 
or  pleasure,  and  permission  of  the  father  is 
immaterial  Hays  v.  Hogan  (Mo.)  1918E- 
1127.  (Annotated) 

c.  Liability  to  Guests. 

14.  A  person  inviting  another  to  ride  in  his 
automobile  gratuitously  is  not  bound  to  con- 
vev  her  safelv  as  a  common  carrier,  Avery 
V.  Thompson  '(Me.)  1918E-1122. 

(Annotated) 

15.  A  voluntary  undertaker,  such  as  a  per- 
son inviting  another  to  take  a  ride  in  his  au- 
tomobile gratuitously,  is  required  to  exercise 
tliat  degree  of  care  and  caution  which  would 
seem  reasonable  and  proper  from  the  charac- 
ter of  the  thing  undertaken,  and  must  be 
mindful  of  the  life  and  limb  of  his  guest,  and 
not  unreasonably  expose  her  to  peril  in  addi- 
tion to  that  involved  in  the  act  of  transpor- 
tation itself,  because  of  the  use  of  an  instru- 
mentality of  tremendous  power,  high  speed, 
and  quick'  action.  Avery  v,  Thompson  (Me.) 
1918E-1122.  (Annotated) 

16.  Defendant's  intestate  invited  plaintiff 
and  others  to  take  a  ride  in  his  automobile 
As  the  jury  might  have  formd,  he  was  famil- 


iar with  a  railroad  crossing  and  knew  he  was 
approaching  such  crossing,  and  the  whistle 
had  been  blowing  and  the  automatic  bell  was 
ringing.  When  within  a  few  rods  of  the 
crossing,  plaintiff  called  attention  to  the 
train  as  it  came  in  sight  around  a  bend,  and 
defendant  slowed  down  a  little,  looked  up 
and  saw  the  train,  and  when  within  a  few 
feet  of  the  crossing  increased  his  speed  and 
attempted  to  cross  in  front  of  the  train  with 
which  he  collided.  It  is  held  that  the  jui-y's 
finding  that  he  unreasonably  exposed  plain- 
tiff to  danger  and  created  a  new  peril,  which 
she  could  not  have  anticipated  and  did  not 
assume,  was  not  palpably  wrong.  Avery  v. 
Thompson    (Me.)     1918E-1122.     (Annotated) 

17.  Contributory  negligence  of  guest  in  au- 
tomobile.— It  is  held  that  the  plaintiff,  who 
had  neither  direction  nor  control  of  the  op- 
eration of  the  car,  and  neither  consented  to 
nor  acquiesced  in  the  particular  management 
or  mismanagement  that  caused  the  accident, 
but  who  was  relying  on  the  competency  of 
the  intestate  as  a  competent  driver,  and 'was 
not  inattentive,  being  apparently  the  first 
one  to  perceive  the  train  and  give  warning, 
was  not  negligent,  Avery  v.  Thompson  (Me.) 
1918E-1122. 

d.  Actions. 

18.  Proof  of  ownership. — In  an  action  for 
personal  injuries  caused  by  the  negligent  op- 
eration of  a  licensed  taxicab  the  statement  of 
the  ownership  thereof  in  the  registry  of  li- 
censes is  not  conclusive  but  may  be  rebutted 
by  the  person  named  as  owner,  Kemp  v. 
Elisha  (Eng.)  1918E-730,  (Annotated) 

19.  Question  for  jury. — ^Whether  a  person 
inviting-  another  to  take  a  ride  in  his  auto- 
mobile has  exercised  the  required  degree  of 
care  is  a  question  of  fact  for  the  jury.  Avery 
V.  Thompson  (Me.)  1918E-1122.  (Annotated) 

3.  Injuries  to  Motor  Vehicles  or  Occupants. 

20.  Failure  to  comply  with  license  law, — 
,The  fact  that  decedent  was  driving  an  un- 
licensed automobile  at  the  time  of  the  acci- 
dent, in  violation  of  the  statute,  does  not  af- 
fect the  right  of  recovery  against  defendant 
railroad,  since  there  was  no  casual  relation 
between  such  violation  of  the  statute  and  the 
wrong  complained  of.  Southern  R.  Co, 
V.  Vaughan   (Va.)   1918D-842.       (Annotated) 

21.  The  failure  of  an  owner  and  driver  of 
an  automobile  to  renew  his  license  from  the 
state  does  not  preclude  a  recovery  of  dam- 
ages for  negligence  of  the  defendant  which 
caused  the  death  of  an  occupant.  Chambers 
V.  Minneapolis,  etc.  R.  Co.  (N.  D.)  1918C- 
954. 

22.  Contributory  negligence  of  guest  in 
automobile. — Where  during  a  trip  taken  at 
night  the  lights  of  an  automobile  fail,  and 
the  owner  and  driver  avails  himself  of  the 
earliest  opportunity  to  improvise  or  repair 
an  oil  lamp  attached  to  the  dash,  after  which, 
the  journey  is  continued,  the  driver  being  an 
experienced  driver,  and  being  accompanied 
and  assisted  by  one  who  is  familiar  with  the 
roads,  and  where  the  roads  are  muddy  and 


AWARD— BAILMENT. 


43 


the  automobile  is  driven  slowly,  it  is  held 
that  a  guest  continuing  the  journey  as  a  pas- 
senger in  the  rear  seat  of  the  car  is  not,  as  a 
matter  of  law,  guilty  of  contributory  negli- 
gence. Chambers  v.  Minneapolis,  etc.  R.  Co. 
(N.  D.)  1918C-954. 

23.  Noncompliance  with  a  statutory  re- 
quirement that  automobiles  should  be  sup- 
plied with  two  lights  at  the  front  of  the  car 
does  not,  as  a  matter  of  law,  amount  to  con- 
tributory negligence  on  the  part  of  a  guest 
riding  in  the  car.  Chambers  v.  Minneapolis, 
etc.  R.  Co.   (N.  D.)   1918C-954. 

24.  Imputed  negligence. — The  negligence  of 
a  driver  of  an  automobile  is  not  imputable 
to  a  guest  who  is  not  shown  to  have  co-op- 
erated in  running  the  car.  Chambers  v. 
Minneapolis,  etc.  R.  Co.    (N.  D.)    1918C-954. 

(Annotated) 

4.  Crimes  Incidental  to  Operation. 

25.  Unauthorized  use  of  automobile  as 
larceny. — Under  Penal  Law,  §  1293a  (Mc- 
Kinney's  Consol.  Laws,  Book  39,  p.  469),  pro- 
viding that  unauthorized  use  of  an  automo- 
bile shall  constitute  the  crime  of  larceny,  a 
chauffeur  who  uses  his  employer's  automobile 
without  his  consent  and  contrary  to  his  in- 
structions is  guilty  of  larceny,  although  the 
car  is  being  driven  for  the  purpose  of  testing 
it.    Rose  V.  Balfe  (N.  Y.)  1918D-238. 

26.  Homicide  by  negligent  operation. — In  a 
prosecution  under  section  12603,  General 
Code,  for  manslaughter  by  the  negligent  op- 
eration of  an  automobile,  the  court  should 
charge  the  jury  that  the  standard  of  conduct 
required  of  the  defendant  in  the  operation  of 
his  car  is  that  of  an  ordinarily  careful  and 
prudent  person,  and  that  if  he  did  not  op- 
erate the  car  "at  a  speed  greater  than  is  rea- 
sonable or  proper,  having  regard  for  width, 
traffic,  use,  and  the  general  and  usual  rules 
of  such  road  or  highway,  or  so  as  to  endan- 
ger the  property,  life,  or  limb  of  any  person," 
as  would  appear  to  such  ordinarily  careful 
and  prudent  person  in  the  then  situation,  he 
was  not  guilty  of  manslaughter.  State  v. 
Schaeffer   (Ohio)   1918E-1137.       (Annotated) 


AW^ARD. 

See  Abbitbation  and  Award. 

BAIL. 

1.  Deposit  in  lieu  of  bail— Right  of  de- 
positor to  reclaim. — The  money  deposited  in 
lieu  of  bail  by  a  third  person  to  secure  the 
release  of  one  arrested  and  required  to  appear 
to  answer  a  criminal  charge  is  not  conclusive- 
ly regarded  as  the  defendant's  money,  and 
when  the  purpose  for  which  the  deposit  has 
been  made  is  accomplished  and  the  obligation 
discharged,  or  there  has  been  a  surrender  of 
the  defendant,  the  money  is  to  be  returned  to 
the  owner.  Campbell  v.  Board  of  County 
Com'rs  (Kan.)   1918r)-533.  (Annotated) 

2.  Shortly  after  the  defendant  had  been 
released  from  custody  by  the  giving  of  a  de- 


posit, he  was  arrested  for  another  offense, 
and  the  officer  who  made  the  arrest,  at  the 
request  of  the  surety  who  made  the  deposit, 
went  with  the  defendant  to  the  courthouse 
and  in  the  presence  of  a  deputy  sheriff  and 
the  clerk  of  the  district  court  made  a  formal 
offer  of  surrender  which  was  accepted  by  the 
deputy  sheriff  who  then  took  the  defendalit 
into  his  custody,  and  thereupon  the  clerk  of 
the  district  cpurt  issued  a  check  to  the  surety 
for  the  amount  of  the  deposit,  and  the  surety 
in  turn  signed  and  delivered  a  receipt  to  the 
clerk  for  the  money  so  returned.  Shortly 
afterward  payment  on  the  check  was  stopped. 
Held,  in  an  action  brought  by  the  surety  to 
recover  the  money  he  had  deposited  instead 
of  bail,  that  the  deputy  sheriff  had  authority 
to  a-ccept  the  surrender  of  the  defendant  and 
that  the  surrender  was  effective  although 
neither  the  sheriff  nor  his  deputy  acknowl- 
edged the  surrender  in  writing.  Campbell  v. 
Board  of  County  Com'ra  (Kan.)  1918D-533. 

(Annotated) 

3.  A  subsequent  declaration  of  forfeiture 
because  of  the  nonappearance  of  the  defend- 
ant, made  by  the  district  court,  to  which  pro- 
ceeding the  owner  of  the  deposit  was  not  a 
party  and  of  which  he  had  no  notice,  did  not 
affect  such  owner  or  estop  him  from  main- 
taining an  action  to  recover  the  deposit. 
Campbell  v.  Board  of  County  Com'rs  (Kan.) 
1918D-533.  (Annotated) 

4  Surrender  of  accused  by  bail. — A  surren- 
der of  the  defendant  may  be  made  to  a  gen- 
eral deputy  of  the  sheriff,  and  the  mere  fact 
that  a  defendant  has  been  placed  under  ar- 
rest by  another  officer  because  of  the  com- 
mission of  another  offense,  shortly  before  an 
attempt  to  surrender  was  made,  did  not  of  it- 
self render  the  attempted  surrender  invalid. 
Campbell  v.  Board  of  County  Com'rs.  (Kan.) 
1918D-533. 


BAIIiMENT. 

See  Factobs;  Pledge. 

1.  Right  of  bailee  to  dispute  bailor's  title. 
— A  bailee  must  return  the  property  or  it>s 
proceeds  to  the  bailor  before  he  can  assert  a 
claim  thereto  adverse  to  the  bailor.  Black- 
orby  v.  Friend  (Minn.)   1918E-1199. 

(Annotated) 

2.  Unauthorized  use  by  bailee  as  conver- 
sion.— As  a  general  rule,  if  a  bailee  uses  the 
subject  of  a  bailment  in  a  different  way  or 
to  a  greater  extent  than  authorized,  such 
unauthorized  use  is  a  conversion  for  which 
the  bailor  may  maintain  trover  for  the  value 
of  the  chattel.  Baxter  v.  Woodward  (Mich.) 
1918C-946.  (Annotated) 

3.  Liability  of  lessor  of  safe  deposit  box. — 
A  bailee,  without  any  special  contract  to  such 
effect,  is  bound  to  use  ordinary  care  in  keep- 
ing the  deposit,  although  the  bailor,  who 
rents  a  safety  deposit  box,  keeps  the  key. 
Schaefer  v.  Washington  Safety  Deposit  Co. 
(111.)  1918C-906.  (Annotated) 

4.  A  safety  deposit  company,  as  bailee, 
must  exercise  such  care  and  diligence  in  the 
preservation  of  the  property  as  every  prudent 


44 


AJ^X.  CAS.  DIGEST  (1918C-iyi8Ej. 


man  takes  of  his  own  goods  of  like  character; 
the  words  "ordinary  diligence"  meaning  that 
degree  of  care,  attention,  or  exertion  which 
under  the  actual  circumstances  a  man  of 
ordinary  prudence  and  discretion  would  use, 
if  the  property  were  his  own.  Schaefer  v. 
Washington  Safety  Deposit  Co.  (111.)  1918C- 
906.  (Annotated) 

5.  The  bailor's  allegations  that  she  leased 
a  safety  deposit  box,  paid  the  rent,  and  de- 
posited money  in  the  box,  and  when  she  later 
opened  the  box  the  money  had  been  abstract- 
ed without  her  consent  or  knowledge,  and 
that  defendant  did  not  use  ordinary  care  and 
diligence  to  prevent  the  opening  of  the  box 
by  others,  show  a  good  cause  of  action,  de- 
spite a  condition  of  the  lease  that  the  opening 
of  the  box  should  not  be  inferable  from  the 
loss  of  its  contents.  Schaefer  v.  Washington 
Safety  Deposit  Co.  (111.)    1918C-906. 

(Annotated) 

6.  "\Miere  a  safety  deposit  company  leases 
a  box  to  plaintiflF,  who  deposited  therein 
money,  and  it  is  lost  without  her  opening  the 
box,  the  presumption  arises  that  the  loss  was 
due  to  the  company's  negligence,  and  it  has 
the  burden  of  showing  that  it  exercised  due 
CMe.  Schaefer  v.  Washington  Safetv  De- 
posit Co.    (111.)    1918C-906.  (Annotated) 


BANANA  PEELS. 

Liability  of  city  for  injury  caused  by  banana 
peel  on  sidewalk,  see  Streets  and  High- 
ways,  12. 


BANKRUPTCY. 

Bankruptcy  within  four  months  of  execu- 
tion of  note  secured  by  deed  of  trust  as 
affecting  holder  without  notice,  see  Mort- 
gages, 9. 

1.  Assets — spendthrift  trust. — The  equita- 
ble life  interest  of  the  beneficiary  in  a  trust 
created  by  a  bequest  of  a  fund  to  a  trustee 
to  pay  the  entire  net  income  thereof  to  the 
beneficiary  for  life  "free  from  the  interference 
or  control  of  her  creditors"  does  not  pass  to 
her  trustee  in  bankruptcy,  under  the  Bank- 
rupt Act  of  July  1,  1898  (30  Stat,  at  L.  566, 
chap.  541,  1  Fed.  St.  Ann.  [2d  ed.]  1171), 
§  70a  (5),  vesting  in  the  trustee  all  property 
that  the  bankrupt  "could  by  any  means  have 
transferred,"  where  the  local  law  treats  such 
restrictions  against  interference  or  control  by 
creditors  as  limiting  the  character  of  the 
equitable  property,  and  inherent  in  it.  Eaton 
v.  Boston  Safe  Deposit,  etc.  Co.  (^j.  S.) 
1918D-90.  (Annotated) 

2.  Effect  of  chattel  mortgage  by  bankrupt. 
— Where  an  assignment  of  corporate  stock  as 
collateral  security  was  executed  prior  to  the 
amendment  of  June  25,  1910.  to  the  Bank- 
ruptcy Act  (1  Fed.  St.  Ann.  [2d  ed.]  1115), 
whether  the  instrument  be  regarded  as  a 
chattel  mortgage  or  other  lien,  even  though  it 
be  void  as  to  creditors  for  want  of  recorda- 
tion, the  trustee  in  bankruptcy  is  bound  by 


it  as  the  bankrupt  was,     Martin  v.  Bankers 
Trust  Co.    (Ariz.)    1918E-1240. 

3.  The  jurisdiction  of  a  state  court  to  fore- 
close a  mortgage  is  not  divested  by  subse- 
quent proceedings  in  bankruptcy  in  which  the 
bankruptcy  court  directs  the  trustee  in  bank- 
ruptcy to  make  application  to  intervene  in 
the  foreclosure  proceeding.  Martin  v.  Bank- 
ers' Trust  Co.   (Ariz.)   iyi8E-1240. 

4.  Notice  of  failing  circumstances  of  mort- 
gagor.— Where  a  new  note  secured  by  a  deed 
of  trust  was  taken  by  a  bank  in  part  satis- 
faction of  an  old  debt,  the  bank  does  not 
obtain  priority  by  the  deed  of  trust;  it  hav- 
ing knowledge  that  the  debtor,  who  was  ad- 
judged a  bankrupt  in  less  than  four  months, 
was  then  in  failing  circumstances.  Peninsula 
Bank  v.  Wolcott   (U.  S.)   1918C-477. 

5.  The  bankrupts,  who  were  indebted  to 
another  firm,  executed  notes  secured  by  a 
deed  of  trust.  These  notes  were  indorsed  by 
a  single  member  of  the  creditor  firm,  and 
were  negotiated  with  two  diflferent  banks,  one 
of  which  banks  already  held  a  note  of  the 
bankrupts,  which  the  creditor  firm  had  in- 
dorsed to  it.  It  is  held  that  the  court  of 
bankruptcy  had  jurisdiction  of  a  proceeding 
to  set  aside  tlie  deed  of  trust,  though  all 
members  of  the  creditor  firm  were  not  par- 
ties; only  that  member  who  indorsed  the 
second  note  being  a  party.  Peninsula  Bank 
V.  Wolcott  (U.  S.)   1918C-477. 

6.  Priority  to  wage  claims — funds  previous- 
ly assigned. — The  provisions  of  the  Bankrupt- 
cy Act  (Act  July  1,  1898,  c.  541,  §  64,  subd. 
4,  30  Stat.  563  [1  Fed.  St.  Ann.  2d  ed.  1090]) 
giving  priority  to  wages  due  workmen  which 
have  been  earned  within  three  months  before 
the  date  of  commencement  of  proceedings  re- 
late to  distribution  of  assets  coming  into  the 
hands  of  the  trustee,  and  do  not  apply  to 
moneys  transferred  or  assigned  before  the 
bankruptcy  occurred.  Riverside  Contracting 
Co.  v.  New  York  (N.  Y.)   1918C-1075. 


BANKS   ANB   BANKING. 

1.  Validity  of  federal  reserve  bank  act. — 
Congress  did  not  exceed  its  power  under  U. 
S.  Const,  art.  1,  §  8,  clause  18,  to  make  "all 
laws  which  shall  be  necessary  and  proper 
for  carrying  into  execution"  the  powers  ex- 
pressly given  by  the  Constitution,  when  giv- 
ing authority  to  the  federal  reserve  board  bv 
the  Act  of  'December  23,  1913  (38  Stat,  at 
L.  262,  chap.  6,  6  Fed.  St.  Ann.  [2d  ed.]  817), 
§  11  (k),  to  grant  by  special  permit  to  na- 
tional banks  applying  therefor,  when  not  in 
contravention  of  state  or  local  law,  the  right 
to  act  as  trustee,  e.xecutor,  administrator,  or 
registrar  of  stocks  and  bonds  under  such  rules 
and  regulations  as  the  board  may  prescribe 
Bay  City  First  Nat.  Bank  v.  Fellows  (U.  S.) 
19i8D-1169.  (Annotated) 

2.  Legislative  power  is  not  unconstitution- 
ally conferred  on  the  federal  reserve  board  bv 
the  Act  of  December  23,  1913  (38  Stat,  at  L. 
262,  chap.  6,  6  Fed.  St.  Ann.  [2d  ed.]  817), 
§  11  (k),  giving  authority  to  that  board  to 
grant  by  •  special  permit  to  national   banks 


BAR— BENEFICIAL  ASSOCIATIONS. 


45 


applying  therefor,  ^Alien  not  in  contravention 
ot  state  or  local  law,  the  right  to  act  as  trus- 
tee, executor,  administrator,  or  registrar  of 
stocks  and  bonds,  under  such  rules  and  regu- 
lations as  the  board  may  prescribe.  Bay 
City  First  Nat.  Bank  v.  Fellows  (U.  S.) 
-1918D-1169.  (Annotated) 

3.  Quo  warranto  against  national  bank  in 
state  court. — The  institution  by  a  state  at- 
torney general  in  a  state  court  of  the  pro- 
ceeding in  the  nature  of  quo  warranto  to  test 
the  authority  of  a  national  bank,  iinder  the 
Act  of  December  23,  1913  (38  Stat,  at  L.  262, 
chap.  6,  6  Fed.  St.  Ann.  [2d  ed.]  817),  §  11 
(k),  to  act  as  trustee,  executor,  administra- 
tor, or  registrar  of  stocks  and  Ijonds,  is  im- 
pliedly if  not  expressly  authorized  by  the 
provisions  of  that  section  giving  such  power 
only  '"vvhen  not  in  contravention  of  state  or 
local  law,"  and  of  the  Act  of  June  3.  1864 
(13  Stat,  at  L.  116,  chap.  106),  §  57,  now  in 
Rev.  St.  §  5198  (6  Fed.  St.  Ann.  [2d  ed.] 
747),  making  controversies  concerning  nation- 
al banks  cognizable  in  state  courts.  Bay 
City  First  Nat.  Bank  v.  Fellows  (U.  S.) 
1918r)-1169. 


BAR. 

Of  limitations,  see  Limitation  of  Actions. 
Plea  in  bar,  see  Pleading,  9. 


BARTENDER. 

What  constitutes  occupation  of  bartender 
within  provision  of  insurance  contract, 
see  Life  Insubance,   7. 


BASEBALL. 

Construction  of  offer  to  baseball  player,  see 
Theaters  and  Amusements,  1. 

Recovery  of  damages  from  telegraph  com- 
pany for  failure  to  deliver  message  con- 
taining offer  to  baseball  payer,  see  Tele- 
graphs AND  Telephones,  7. 


BASTARDY. 

Settlement  of  bastardy  proceeding  as  bar  to 
action  by  father  to  recover  damages  for 
seduction,  see   Seduction,  5. 


BATTERY. 

See  Assault  and  Battery. 

BENEFICIAL  ASSOCIATIONS. 

1.  Regulation  and  Control,  45. 

2.  Validity    and    Construction    of    Contract 

Generally,  45. 

3.  Constitution     and    By-laws — Amendment, 

45. 


4.  Suspension  and  Reinstatement  of  Members, 

46. 

5.  Beneficiaries,  47. 

6.  Action  to  Recover  Benefits,  47. 

7.  Liability  for  Tort  of  Agent,  47. 

See  Insurance;  Life  Insurance. 

Admissibility  of  statement  of  insured  in  last 
illness,  see  Admissions  and  Declara- 
tions, 16. 

Admissions  and  declarations  of  insured,  see 
Admissions  and  Declarations,  3-6,  16. 

Conflict  between  health  policy  and  by-laws 
of  association,  see  Insurance,  50. 

Joint  liability  of  fraternal  order  and  agent 
for  circulating  libel,  see  Libel  and  Slan- 
der, 33. 

Physician's  death  certificate  as  evidence,  see 
Evidence,  22. 

Presumption  of  death  of  insured,  see  Death, 
1. 

Relief  society  of  employees,  see  Master  and 
Servant,  27-34. 

1.  Regulation  and  Control. 

1.  Application  of  state  insurance  laW. — Re- 
visal  1905  §  4806,  making  all  insurance  con- 
tracts within  the  state  subject  to  state  law, 
does  not  apply  to  a  fraternal  benefit  policy, 
in  view  of  section  4791,  making  such  a  policy 
subject  to  charter  and  by-laws  of  the  order. 
Hollingsworth  v.  Supreme  Council  etc.  (N.  C.)- 
1918E-401. 

2.  Foreign  association. — A  benefit  society 
incorporated  in  another  state  which  comes 
into  this  state  in  order  to  do  business  under 

the  permission  granted  by  the  laws  of  Ne-         ^ 
braska  is  subject  to  the  same  limitations  and 
restrictions  as  such  an  association  organized 
in  Nebraska.    Dworak  v.  Supreme  Lodge  etc. 
(Neb.)   1918D-1153. 

2.  Validity    and    Construction    of    Contract 

Generally. 

3.  The  beneficiary  of  a  fraternal  benefit 
society's  certificate  is  entitled  to  a  liberal  and 
faA'orable  interpretation  of  the  contract;  for, 
although  fraternal  benefit  societies  are  usu- 
ally dealt  with  more  liberally  in  some  re- 
spects than  ordinary  insurance  companies, 
they  are  subject  to  the  same  rules  of  law  and 
construction  as  other  companies  in  regard  to 
their  contracts  for  life  insurance.  Greenwood 
V.  Royal  Neighbors  of  America  (Va.)  1918D- 
1002. 

3.  Constitution    and    By-laws — ^Amendment. 

4.  Effect  as  to  existing  members. — An  in- 
surance contract  by  a  mutual  benefit  society, 
providing  that  the  insurance  is  granted  to 
the  member  with  the  distinct  provision  that 
the  rights  and  benefits  shall  be  subject  to 
and  governed  by  the  constitution  and  by- 
laws of  the  society  existing  when  the  policy 
was  issued,  or  that  may  be  thereafter  adopted 
or  amended  by  the  society  before  injury,  per- 
mits any  reasonable  change  in  the  rights  and 
benefits  under  the  contract  by  amendment  or 
adoption  of  by-laws  of  the  society  increasing 


46 


ANN.  CAS.  DIGEST  (1918C-1918E). 


or  decreasing  the  dues  and  assessments,  de- 
fining an  ambiguous  term  in  the  covenani, 
or  reasonably  reducing  tlie  benelits,  and  such 
change  in  the  by-laws  is  valid,  if  reajionable, 
and  is  to  be  read  into  the  contract  as  if 
written  therein.  Butler  v.  Eminent  House- 
hold of  Columbian  Woodmen  (Miss.)  1918D- 
1137.  (Annotated) 

5.  Where,  at  issuance  of  a  beneficiary  cove- 
nant by  a  mutual  benefit  insurance  society, 
the  covenant  or  contract  of  insurance  and  the 
constitution  and  by-laws  of  the  society  pro- 
vided that  the  beneficiary  should  receive  $200 
in  the  event  of  a  broken  leg,  and  thereafter 
such  provision  of  the  constitution  of  the 
society  was  amended  to  provide  that  the  be- 
neficiary should  be  paid  $100  in  the  event  of 
complete  fracture  of  the  thigh,  involving  either 
the  upper  or  lower  extremity,  or  the  shaft 
of  the  bone,  or  in  the  event  of  complete 
fracture  of  either  or  both  bones  of  the  lower 
leg  (tibia,  or  shin  bone,  or  fibula),  at  either 
extremity  or  along  the  center,  or  in  event 
of  the  complete  fracture  of  the  kneecap,  such 
amendment  to  the  constitution,  defining  what 
was  meant  by  a  broken  leg,  was  reasonable 
and  proper  under  the  provision  of  the  in- 
surance contract  that  the  member's  rights 
and  benefits  were  subject  to  and  governed  by 
the  constitution  and  by-laws  of  the  society 
as  existing  or  amended.  Butler  v.  Eminent 
Household   of  Columbian   Woodmen    (Miss.) 

.1918D-1137.  (Annotated) 

6.  Right  to  raise  rates. — There  is  no  stat- 
utory prohibition  against  the  raising  of  the 
lates  of  a  fraternal  benefit  association.  Hol- 
lingsworth  v.  Supreme  Council,  etc.  (N.  C.) 
1918E-401. 

7.  A  member  of  a  fraternal  benefit  society, 
having  had  insurance  at  less  than  the  normal 
rates  for  many  years,  cannot  urge  his  having 
borne  the  burden  of  the  company  against  a 
raise  in  rates  to  make  possible  the  payment 
of  certificates.  HoUingsworth  v.  Supreme 
Council,   etc.    (N.   C.)    1918E-401 

(Annotated) 

8.  A  member  of  a  fraternal  benefit  society 
who  had  free  access  to  all  books  and  by-laws 
cannot  recover  assessments  paid,  when 
society  raised  rates,  on  the  theory  that  in 
inducing  him  to  become  a  member,  agent 
fraudulently  represented  that  rates  would  not 
be  raised,  since  the  agent  might  lionestly 
have  believed  so,  or  might  not  have  intended 
to  deceive,  and  plaintiff  could  have  informed 
himself  from  by-laws,  etc.,  whether  raise 
could  be  made.  HoUingsworth  v.  Supreme 
Council,   etc.    (N.   C.)    1918E-401. 

9.  A  member  of  a  fraternal  benefit  society 
who  had  free  access  to  all  books  and  by-laws 
cannot  recover  assessments  paid,  when  soci- 
ety raised  rates,  after  many  years'  member- 
ship, on  theory  that  it  was  falsely  represented 
to  him  that  the  rates  would  not  be  raised, 
since  his  laches  bar  equitable  relief.  Hol- 
lingsworth  v.  Supreme  Council  (N.  C.)  1918E- 
401. 

10.  What  law  governs. — There  being  no 
statute  prohibiting  a  fraternal  benefit  society 
from  raising  its  rates,  and  Revisal  1905,  § 
4791,  making  the  charter  govern  the  policy. 


the  question  whether  a  Massachusetts  com- 
pany may  raise  rates  in  North  Carolina  in- 
volves Const.  U.  S.  art.  4,  §  1,  as  to  full 
faith  and  credit  and  the  decisions  of  the 
United  States  Supreme  Court  are  binding  on 
the  supreme  court  of  North  Carolina.  Hol- 
ingsworth  v.  Supreme  Council,  etc.  (N.  C.) 
1918E-401. 

11.  Since  no  North  Carolina  law  prohibits 
fraternal  benefit  society  from  raising  its 
rates,  but  Revisal  1905,  §  4791,  makes  such 
contracts  subject  to  charter  and  by-laws  of 
the  company,  a  Massachusetts  company 
whose  charter  and  by-laws  permit  may  raise 
the  rate  of  a  North  Carolina  member.  Hol- 
lingsworth  v.  Supreme  Council,  etc.  (N.  C.) 
1918E-401. 

4.  Suspension  and  Reinstatement  of  Members. 

12.  Right  of  member  to  resort  to  courts. — 
A  member  of  a  beneficial  association  connot, 
in  the  absence  of  fraud,  resort  to  the  courts 
for  relief  against  suspension  before  exhaust- 

'ing  his  remedies  within  the  association.  Most 
Worshipful  United  Grand  Lodge,  etc.  v,  Lee 
(Md.)   1918E-1174.  (Annotated) 

13.  Where  a  beneficial  association  suspends 
a  member  in  accordance  with  the  proceedings 
established  by  the  rules,  the  member  has  no 
recourse  to  the  court;  but,  if  proceedings  have 
not  been  conducted  as  prescribed  by  the  rules, 
and  the  member  was  given  no  opportunity  to 
defend  himself,  the  courts  will  interfere. 
Most  Worshipful  United  Grand  Lodge,  etc.  v. 
Lee   (Md.)   1918E-1174.  (Annotated) 

14.  ^^Iiere  the  constitution  oi  a  lodge  pro- 
Tides  for  the  impeachment  of  the  master  of  a 
subordinate  lodge  by  charges  preferred  before 
the  grand  master,  who,  if  he  deems  them  well 
taken,  may  suspend  the  master  and  summon 
him  before  the  grand  lodge  to  answer  the 
charges,  but  a  miaster  is  suspended  from  mem- 
bership on  report  by  a  committee  appointed 
by  the  grand  master  for  that  purpose  and 
confirmed  by  the  grand  lodge  without  any 
opportunity  having  been  given  to  defend  him- 
self before  the  grand  lodge,  and  no  provision 
is  made  for  appeal  from  such  proceedings,  the 
suspended  master  is  entitled  to  relief  in 
equity.  Most  Worshipful  United  Grand 
Lodge,  etc.  v.  Lee  (Md.)   1918-1174. 

(Annotated) 

15.  Waiver  of  suspension  of  member. — The 
provisions  of  the  laws  of  the  association  lim- 
iting its  liability,  where  a  suspended  member 
has  been  restored  or  reinstated  to  good  stand- 
ing, to  injuries  thereafter  suffered,  have  no 
application  where  no  suspension  was  declared, 
or  where  a  suspension,  occurring  automatic- 
ally by  reason  of  the  default,  has  been  waived 
by  the  association.  Suits  v.  Order  of  United 
Commercial  Travelers   (Minn.)   1918E-508. 

16.  The  practice  and  custom  of  defendant, 
an  accident  benefit  insurance  association,  in 
permitting  and  receiving  from  its  members 
the  payment  of  dues  and  assessments  after 
the  due  date  thereof,  held,  following  Mueller 
V.  Grand  Grove  U.  A.  0.  D.  69  Minn.  236,  not 
only  a  waiver  of  the  failure  to  pay  within 
the  time  fixed  by  the  laws  of  the  order,  but 
also  a  waiver  of  the  by-laws  declaring  a  for- 


BENEFICIARY— BILLS  AND  NOTES. 


47 


feiture  for  the  default  and  an  estoppel  to  in- 
voke the  same  in  an  action  on  the  contract. 
Suits  V.  Order  of  United  Commercial  Travel- 
ers (Minn.)  1918E-508. 

17.  Reinstatement — Good  health  of  insured. 
— Where  a  member  of  a  fraternal  benefit  so- 
ciety allows  her  certificate  to  lapse  for  non- 
payment of  dues,  and  thereafter,  applying  for 
reinstatement,  warrants,  under  the  terms  of 
the  certificate,  that'  she  is  in  good  health, 
being,  in  fact,  without  knowledge  that  she 
was  suffering  from  valvular  disease  of  the 
heart,  there  is  no  breach  of  her  warranty  of 
"good  health,"  a  phrase  which,  used  in  its 
common  and  ordinary  sense  by  a  person 
speaking  of  his  own  condition,  implies  a  state 
of  health  unimpaired  by  any  serious  malady 
-of  which  the  person  himself  is  conscious:  the 
warranty  covering  only  knowingly  false 
statements  relating  to  health.  Greenwood  v. 
Roval  Neighbors  of  America  (Va.)  1918D- 
1002.  (Annotated) 

18.  In  an  action  against  a  fraternal  bene- 
ficiary society  on  a  benefit  certificate,  whether 
the  member,  when  applying  for  leinstatement, 
was  not  in  good  health,  is  held  to  be  for  the 
juiT  under  the  evidence.  Greenwood  v.  Royal 
Neighbors  of  America   (Va.)   1918D-1002.' 

'  19.  Waiver  of  provision. — The  M.  B.  A..  ^ 
fraternal  benefit  society,  with  lodge  and  in- 
surance features,  in  April,  1910,  received  Mrs. 
Bailey  as  a  member,  and  issued  to  her  a  bene- 
fit certificate  of  insurance,  and  assessed  and 
collected  from  her,  monthly,  a  per  capita  tax, 
reserve  fund  dues,  and  benefit  assessments. 
up  to  assessment  No.  11,  which  was  due  and 
payable  during  the  month  of  November.  This 
payment  was  not  made  until  about  15  days 
after  due,  when  it  was  made  and  received  and 
retained  by  the  company;  an  unconditional 
receipt  being  issued  therefor.  Thereafter,  and 
for  the  months  of  December,  January,  Feb- 
ruary, March,  and  April,  the  company  as- 
sessed her  as  other  members  in  good  standing 
and  received  and  retained  for  each  of  said 
months,  timely  payments  of  the  assessments 
and  local  dues,  issuing  unconditional  receipts 
therefor.  Mrs.  Bailey  died  in  April,  without 
any  delinquency  as  to  payments,  except  as 
to  the  belated  payment  the  previous  Decem- 
ber. Held,  that  the  conduct  of  the  company 
in  retaining  the  belated  payment,  without 
condition,  and  the  continued  assessments  and 
retention  of  payments,  without  condition,  for 
several  months,  waived  the  provision  that  the 
reinstatement  of  a  member,  in  default  as  to 
payments,  is  upon  condition  that  such  mem- 
ber is  in  good  health.  Modern  Brotherhood, 
etc.  V.  Bailey   (Okla.)    1918E-744. 

5.  Beneficiaries. 

20.  Law  governing. — The  statute  of  Ne- 
braska which  specifically  prescribes  the  per- 
sons to  whom  payment  of  benefits  by  a  fra- 
ternal beneficiary  association  can  be  made 
(Rev.  St.  1913,  §  3298),  governs  in  all  Ne- 
braska contracts.  The  law  of  the  domicil  of 
a  foreign  association  has  no  application  to 
such  contract.  Dworak  v.  Supreme  Lodge, 
etc.  (Neb.)  1918D-1153.  (Annotated) 


6.  Action  to  Recover  Benefits. 

21.  Statements  in  proof  of  death.^State- 
ment  in  proof  of  death  of  age  of  insured  is 
not  conclusive  on,  but  may  be  controverted 
by,  the  beneficiary  in  an  action  on  a  contract 
of  mutual  benefit  insurance,  in  the  absence 
of  facts  creating  an  estoppel.  Armstrong  v. 
Modern  Woodmen  of  America  (Wash.) 
1918E-263.  ,    .,    .     ....     VL  .;; 

7.  Liabflity  for  Ofort  of  Agent. 

22.  Where,  though  a  fraternal  order  has 
social,  benevolent,  and  charitable  features,  it 
is  essentially,  so  far  as  its  head  camp  is  con- 
cerned, an  insiurance  corporation  conducted  on 
the  assessment  plan,  and  it  has  a  benefit 
fund,  out  of  which  death  claims  are  to  be 
paid,  and  a  general  fund,  which  may  be  used 
for  other  purposes,  and  out  of  which  hun- 
dreds of  thousands  of  dollars  are  paid  in 
combating  an  effort  on  the  part  of  a  portion 
of  the  members  to  secure  the  repeal  of  leg- 
islation raising  the  premium  rates  it  is  not 
immune  from  liability  for  a  libel  circu- 
lated by  its  oflicers  and  agents  in  combating 
such  effort,  on  the  ground  that  its  fund^  are 
trust  funds.  Morse  v.  Mode'^n  Woodmen  6f 
America  (Wis.)  19180-481.'    i'     {Annotated) 


BENEFICIART. 

Interest  of  beneficiary  in  life  insurance  poli- 
cy, see  Life  Insubance,  9. 

BTDmitQ, 

Chilling  or  suppressing,  see  CJohteactS,  16, 
17. 


BILL  OF  EXCEPTIONS. 

See  Appeal  and  Ebroe,  24-29. 

BII.I.  OF  IJU)ING. 

See  Cabriebs  of  Goods,  4. 

BII.I.  of'^^PARTICUUVRS. 

In  criminal  cases,  see  Indictments  and  In- 
formations, 12-17. 

In  prosecution  for,  embezzlement,  see  Embez- 
zlement, 2,'. Scrr!  ai  y  -i 

■■',   r;;rh!   -- tTq 

BILLS  AND  NOTES. 

Action  on  lost  note,  see  Lost  iNSXtti^iENTS, 
1-5. 

1.  Extension  of  time  as  discharge  of  ac- 
commodation maker. — The  general  provisions 
of  Negotiable  Instruments  Law  (Laws  1899, 
eh.  94)  are :  "The  person  primarily  liable  on 
an  instrument  is  the  person  who  by  the  terms 


48 


A^2^.  CAS.  DIGEST  (19180-1918E). 


of  the  instrument  is  absolutely  required  to 
pay  the  same.  All  other  parties  are  second- 
arily liable."  Section  119  provides  that  a 
negotiable  instrument  is  discharged:  '"l.  By 
payment  in  due  course,  by  or  on  behalf  of 
the  principal  debtor;  2.  By  payment  in  due 
course^  by  the  party  accommodated,  where  the 
instrument  is  made  or  accepted  for  accommo- 
dation; 3.  By  the  intentional  cancellation 
thereof  by  the  holder;  4.  By  any  other  act 
which  will  discharge  a  simple  contract  for 
the  payment  of  money;  5.  When  the  prin- 
cipal debtor  becomes  the  holder  of  the  in- 
strument at  or  after  maturity  in  his  own 
right."  Section  120  provides  that  a  person 
secondarily  liable  on  the  instrument  is  dis- 
charged (subsection  6):  "By  an  agreement 
binding  upon  the  holder  to  extend  the  time 
of  payment,  or  to  postpone  the  holder's  right 
to  enforce  the  instrument,  unless  made  with 
the  assent  of  the  party  secondarily  liable,  or 
unless  the  right  of  recourse  against  such 
party  is  expressly  reserved."  It  is  held  that 
a  person  signing  a  note  as  maker,  but  shown 
by  extrinsic  evidence  to  have  been  an  accom- 
modation maker  was  primarily  liable,  and  is 
not  discharged  by  an  agreement,  although 
made  without  his  knowledge  or  consent,  be- 
tween the  holder  and  maker,  for  valuable 
consideration,  to  extend  the  time  of  payment. 
Graham  v.  Shephard  (Tenn.)  1918E-804. 

(Annotated) 
2.  Shannon's  Code,  §  3517,  providing  that  a 
surety,  as  a  party  secondarily  liable,  may  be 
discharged  from  liability  by  giving  the  holder 
of  the  note  thirty  days'  written  notice  to  sue, 
and  section  3522,  providing  that  a  surety  may 
be  discharged  from  liability  by  the  principal 
debtor  procuring  a  stayor  to  stay  the  judg- 
ment, in  so  far  as  they  conflict  with  the  later 
legislative  enactment  in  the  Negotiable  In- 
struments Law,  were  repealed  by  that  act. 
Graham  v.  Shephard  (Tenn.)  1918E-804. 


BONA  FIDE  PURCHASER. 

See  Vendoe  axd  Pubchaser,  14-23. 
Assignee  for  the  benefit  of  creditors  as  bona 

fide    purchaser,    see    Assignments    fob 

Benefit  of  Creditors,  1. 


BONDS. 

Of  building  contractor,  see  Contracts,  33- 
34. 

Of  persons  engaged  in  transporting  passen- 
gers in  motor  vehicles,  see  Cabbiess  of 
Passengebs,  20. 

On  appeal,  see  Appeal  and  Error,  111-120. 

Conditional  signing  by  sureties  as  defense 
in  action  on  bond,  see  Suretyship,  4-7. 

Giving  of  bond  by  secretary  of  building  and 
loan  association  as  aflFecting  lien  of  as- 
sociation for  amount  embezzled  on  stock 
held  by  secretary,  see  Building  and 
Loan  Associations,  7. 

Liability  of  abstractor  on  bond,  see  Abstract 
OF  Title,  1. 

Liability  on  bond  of  public  officer,  see  Public 
Officers,  15,  16. 

Necessity  of  indemnity  bond  in  action  on 
lost  note,   see  Lost  Instruments,  1. 

Summary  judgment  in  injunction  bond,  see 
Injunctions,  22,  23. 

1.  Provision  tor  special  fund  for  payment. 
— That  special  contract  bonds  provide  for  a 
retirement  fund  and  an  interest  fund  from 
the  surplus  earnings  of  the  grantor  in  the 
deed  of  trust,  does  not  make  the  bonds  a 
nullity  where  there  is  a  further  provision  that 
on  default  the  bonds  are  enforceable  against 
the  entire  mortgage  property  through  a  fore- 
closure suit,  the  appointment  of  a  receiver, 
and  a  sale  of  the  property.  Martin  v.  Bank- 
ers' Trust  Co.  (Ariz.)  1918E-1240. 


BOOK  ACCOUNTS. 


BINDING  SUP. 

See  Insurance,  38. 


See  Accounts  and  Accounting. 


BOYCOTT. 


BOARDS. 

Beview  by  state  boards  of  equalization  of  as- 
sessments,  see  Taxation,   33,  16-20. 

Rule  of  board  of  trade  prohibiting  members 
from  dealing  in  grain  between  sessions 
of  board  at  price  other  than  closing  bid 
as  violation  of  anti-trust  act,  see  Monop- 
olies, 1,  2. 

Validity  of  statute  creating  state  insurance 
board,  see  Insukance,  8-15. 


Legality,   see  Labor  Combinations,   10-12. 

Distinguished  from  rule  of  labor  union  pro- 
hibiting members  from  working  with 
nonunion  material,  see  Labob  Combina- 
tions, 7. 


BRIDGES. 

Eight  of  one  railroad  company  to  use  bridge 
of  another,  see  Eaii  roads,  6-13. 


BOAT  UVEBY. 


BRIEFS. 


Liability  for  injury  to  patron,  see  Theatbbs 
AND  Amusements,  2,  3. 


Brief  of  counsel  on  appeal,  see  Appeal  and 
Error,  34. 


BROKERS. 


49 


BROKERS. 

1.  Real  Estate  Brokers:  » 

a.  Contract  of  Employment,  49. 

b.  Right  to  Compensation,  49. 

c.  Amoimt  of  Compensation,  49. 

d.  Actions  for  Compensation,  49. 

2.  Loan  Brokers,  49. 

Judgment  against  husband  and  wife  in  ac- 
tion for  commission  on  contract  of  hus- 
band, see  Husband  axd  Wife,  22. 

Oral  contract  for  payment  of  commission  for 
exchange  of  personal  property  for  real- 
ty as  within  statute  of  frauds,  see 
Frauds,  Statute  of,  3. 

1.  Real  Estate  Brokers. 
a.  Contract  of  Employment. 

1.  Severable  contract. — An  agreement  to 
pay  a  broker  commission  for  effecting  an  ex- 
change of  properties,  whereon  the  owner  gives 
the  broker  a  list  of  his  properties,  placing 
separate  valuations  on  •  each,  without  an 
agreement,  making  the  right  to  a  commission 
for  the  exchange  of  stock  dependent  on  the 
sale  or  exchange  of  realty,  or  anything  to 
make  the  right  dependent  on  the  sale  or  ex- 
change of  the  stock  separate  from  the  realty, 
is  severable.  Godefroy  v.  Hupp  (Wash.) 
1918E-494.  (Annotated) 

2.  Right  to  revoke  authority. — A  contract 
which  makes  one  the  agent  of  the  owner  of 
land  for  the  sale  thereof  is  simply  a  listing 
contract,  revocable  at  any  time  by  the  owner, 
and  notice  of  revocation  terminates  the  rights 
under  the  contract.  Fields  v.  Vizard  Invest. 
Co.   (Ky.)   1918D-336.  (Annotated) 

b.  Right  to  Compensation. 

3.  Performance  variant  from  contract. — 
The  fact  that  an  exchange  as  finally  con- 
eluded  did  not  embrace  all  of  the  realty  in- 
cluded in  defendant's  list  given  to  the  broker, 
and  did  include  certain  machinery,  a  team, 
harness,  and  wagon,  not  included  in  the  list, 
will  not  defeat  the  action  for  a  commission, 
if  the  contract  was  in  writing,  where  the 
exchange  was  concluded  along  lines  contem- 
plated in  the  correspondence  of  the  broker's 
agent  w^th  the  otlier  party,  which  was  sub- 
mitted to  defendant  and  led  to  his  closing  the 
deal.     Godefroy  v.  Hupp  (Wash.)   1918E-494. 

4.  Implied  contract  to  pay  commission. — In 
a  broker's  action,  on  the  theorv  that  defend- 
ants, by  refusing  to  perform  a  contract  of 
sale,  became  indebted  to  him  for  services  in 
procuring  the  purchaser,  evidence  is  held  not 
to  show  any  contractual  relation  between  the 
broker  and  defendants,  Dickinson  v.  Hanley 
(Mich.)  1918C-1063.  (Annotated) 

5.  WTiere  a  broker  is  a  mere  volunteer,  hop- 
ing to  get  a  commission  out  of  the  purchaser, 
whom  he  procured,  defendants'  misrepresenta- 
tion as  to  the  authority  of  a  defendant  to 
make  the  sale  cannot  be  made  the  basis  of  an 
a-ction  in  the  brokers  behalf.  Dickinson  v. 
Hanlev  (Mich.)  1918C-1063.  (Annotated) 

Ann    Ca.«.  Dig.  1918C-E.— 4. 


c.  Amount  of  Compensation. 

6.  In  absence  of  express  contract. — ^Where 
an  agreement  to  pay  broker  a  commission  for 
effecting  an  exchange  of  properties  is  silent 
as  to  rate  of  commission  to  be  paid,  it  was 
implied  that  the  rate  should  be  such  as  is 
usually  and  customarily  paid  at  that  place 
for  an  exchange  or  sale  of  such  stocks.  Gode- 
froy V.  Hupp   (Wash.)   1918E-494. 

d.  Actions  for  Compensation. 

7.  Evidence. — In  a  broker's  action  for  com- 
missions for  effecting  an  exchange  of  personal 
property  for  realty,  the  written  contract  of 
exchange  is  not  conclusive  as  to  the  value  of 
the  stock,  so  that,  where  it  fixes  no  separate 
value  on  any  of  the  properties,  no  commis- 
sion is  recoverable,  since  the  broker,  being  a 
stranger  to  the  contract,  is  not  bound  by  it, 
and  may  prove  by  parol  the  value  of"  the 
stock.    Godefroy  v.  Hupp  (Wash.)  1918E-494. 

8.  In  an  action  for  a  broker's  commission, 
it  is  held  on  the  evidence,  that  the  appellate 
court  would  not  disturb  a  verdict  for  plain- 
tiff for  insufficiency  of  the  evidence  to  estab- 
lish the  rate  of  commission  allowed  by  the 
jury.    Godefroy  v.  Hupp.  (Wash.)  1918E-494. 

9.  Questions  for  jury. — On  evidence  in  a 
broker's  action  for  services  rendered  in  an  ex- 
change of  personal  property  for  realty, 
Avhether  the  plaintiff,  through  his  employee, 
was  the  prociuing  cause  of  the  exchange  as 
finally  consummated  is  held  to  be  a  question 
for  the  jurv.  Godefroy  v.  Hupp  (Wash.) 
1918E-494. 

10.  \Miether  a  contract  with  a  broker  for 
commissions  for  an  exchange  of  property  is 
divisible  in  respect  to  personalty  and  realty 
is  a  question  of  law  depending  on  the  terms 
of  the  contract,  but  what  such  tei-ms  are  is 
a  question  of  fact  on  the  evidence.  Godefroy 
V.  Hupp  (Wash.)  1918E-494.         (Annotated') 

11.  In  an  action  upon  an  oral  contract  for 
service  as  a  broker  in  effecting  an  exchange 
of  properties,  it  is  held,  on  the  evidence,  that 
whether  the  defendant  agieed  to  pay  a  com- 
mission on  any  sale  or  exchange  of  its  prop- 
erty, whether  of  stock  alone,  real  property 
alone,  or  of  the  stock  and  real  property  to- 
gether, w-as  for  the  jury.  Godefroy  v.  Hupp 
(Wash.)   1918E-494. 

12.  In  broker's  action  for  his  commission 
for  effecting  an  exchange  of  stock  for  realty, 
conflicting  evidence,  tending  to  show  that  cer- 
tain mill  stock  was  put  in  at  $45,000  and  cer- 
tain oil  stock  at  $15,000,  is  sufficient  to  take 
the  valuation  of  such  stock  to  the  jury. 
Godefroy  v.  Hupp.   (Wash.)   1918E-494. 

2.  Loan  Brokers. 

13.  Sufficiency  of  performance. — ^In  a  brok- 
er's action  for  commissions  for  procuring  a 
loan,  evidence  as  to  whether  it  was  under- 
stood that  plaintiff  was  acting  as  broker  and 
not  for  himself,  and  that  a  commission  men- 
tioned in  the  negotiations  was  a  commission 
for  procuring  the  loan  and  not  part  of  the 
consideration  for  the  loan,  if  made,  and  as  to 
whether  a  loan  was  agreed  upon,  or  whether 
it  was  to  be  contingent  upon  a  purchase  of 


50 


AWN.  CAS.  DIGEST  (1918C-1918E). 


land  by  defendant,  is  lield  to  make  a  question 
for  the  jury  aa  to  plaintiff's  right  to  recover. 
Parker  v.  Power  (Md.)  19180604. 

(Annotated) 


BUIIJ>ING  AND  LOAN  ASSOCIA- 
TIONS. 

1.  Lien  on  stock — Effect  of  by-law. — Code, 
§  1626  provides  that  the  transfer  of  shares  of 
corporate  stock  is  not  valid  except  a,s  between 
the  parties  until  regularly  entered  upon  the 
books  of  the  company,  and  that,  when  any 
shares  of  stock  shall  be  transferred  as  col- 
lateral security,  the  transferee  may  notify  in 
writing  the  secretary  of  the  corporation,  and 
from  the  time  oi  such  notice,  and  until  writ- 
ten notice  that  the  stock  has  ceased  to  be  held 
as  collateral  security,  the  stock  shall  be  con- 
sidered in  law  as  transferred  on  the  books  of 
the  corporation  without  an  actual  transfer. 
It  is  held  that  where  the  by-laws  of  a  build- 
ing and  loan  association  gave  the  association 
a  lien  on  shares  of  stock  for  aay  indebtedness 
to  it  from  the  shareholder,  the  giving  of  the 
statutory  notice  by  a  pledgee  of  stock  did 
not  extinguish  the  association's  lien  for  an 
indebtedness  then  existing,  or  give  the  pledgee 
priority  over  the  association  for  the  amount 
the  shareholder  owed  the  association  at  the 
time  of  the  pledge.  Jewell  v.  Nuhn  (Iowa) 
1918D-356.  (Annotated) 

2.  A  building  and  loan  association,  which 
delivered  to  a  stockholder  a  passbook  purport- 
ing to  contain  a  copy  of  the  articles  of  incor- 
poration and  the  by-laws,  but  not  including 
therein  a  provision  in  the  by-laws  giving  the 
association  a  lien  on  the  shares  of  stock  for 
the  shareholders'  indebtedness  to  it,  is  not 
thereby  estopped  from  asserting  such  lien  on 
the  shares  of  another  stockholder  which  were 
pledged  to  the  stockholder  in  question  as 
collateral  security,  as  he  had  power  by  going 
to  the  record  to  find  out  what  the  by-laws 
were,  and  was  charged  with  notice  of  the  by- 
laws on  record  in  the  office  of  the  proper 
recorder  of  deeds,  especially  where  the  cer- 
tificate of  stock  assigned  to  him  as  collateral 
contained  the  provision  of  the  by-laws  re- 
specting such  lien.  Jewell  v.  Nuhn  (Iowa) 
1918D-556.  (Annotated) 

3.  Where  a  pledgee  of  stock  in  a  building 
and  loan  association  is  himself  a  stockholder, 
the  by-laws  are  notice  to  him  of  a  lien  on 
the  stock  in  favor  of  the  association  thereby 
created.     Jewell  v.  Nuhn  (Iowa)   1918D-356. 

(Annotated) 
4  What  constitutes  debt  for  which  lien 
given. — Under  a  by-law  of  a  building  and  loan 
association  giving  the  association  a  lien  on 
stock  for  sums  due  it  from  the  shareholder 
on  his  subscription  to  the  stock  or  for  money 
loaned  by  it  to  him  or  for  any  other  indebted- 
ness due  from  him,  and  providing  that  no 
stock  shall  be  transferred  unless  all  debts 
due  the  association  are  first  paid,  a  claim 
against  a  shareholder  for  an  amount  em- 
bezzled by  him  while  secretary  of  the  asso- 
ciation is  a  "debt"  as  against  a  voluntary 
pledgee  of  the   secretary's   stock, .  especially 


where  the  embezzlement  is  conceded,  and  it 
appears  that  at  the  time  the  stock  was 
pledged  the  amount  of  the  embezzlement  ex- 
ceeded the  value  of  the  stock  pledged^  Jewell 
V.  Nuhn   (Iowa)    1918D-356.         (Annotated) 

5.  Even  though  such  claim  is  not  a  debt  un- 
til reduced  to  judgment,  this  does  not  affect 
the  priority  of  the  association's  lien,  but 
merely  postpones  its  enforcement  until  the 
demand  is  reduced  to  judgment,  as  the  by- 
laws create  a  lien  for  future  as  well  as  pres- 
ent indebtedness.  Jewell  v.  Nuhn  (Iowa) 
1918I>-356.  (Annotated) 

6.  Where  the  by-laws  of  an  incorporated 
building  and  loan  association  provide  that  the 
association  shall  have  a  lien  on  its  stock  for 
any  sum  due  from  the  shareholder  on  account 
of  the  subscription  to  the  stock  or  for  money 
loaned  by  the  association  to  the  shareholder 
or  for  any  other  indebtedness  due  from  the 
shareholder,  and  that  no  stock  shall  be  trans- 
ferred unless  all  debts  due  the  association  are 
first  paid,  if,  under  the  law,  a  pledgee  of  stock 
is  justified  in  believing  that  the  language  or 
the  by-laws  mean  a  debt,  in  strictness,  he  has 
a  right  to  treat  the  language  as  having  such 
meaning,  and  may  object  to  a  different  inter- 
pretation extending  the  lien  to  the  liability 
of  the  shareholder  for  money  embezzled  by 
him  as  secretary  of  the  association.  Jewell 
V.  Nuhn   (Iowa)   1918D-356.  (Annotated) 

7.  Where  the  by-laws  of  a  building'  and  loan 
association  provide  that  the  association  shall 
have  a  lien  on  the  shares  of  each  shareholder 
for  any  sum  due  it  from  him  either  on  ac- 
count of  the  subscription  to  the  stock  or  for 
money  loaned  by  it  to  him  or  for  any  other 
indebtedness  due  from  the  shareholder,  and 
that  no  stock  shall  be  transferred  unless  all 
debts  due  the  association  are  first  paid,  the 
association  has  a  lien  on  the  stock  of  a  share- 
holder for  an  amount  embezzled  by  him  wliile 
secretary  of  the  association,  and  the  fact  that 
the  secretary  is  bonded  does  not  prevent  sucli 
lien,  as  it  is  the  fact  of  an  indebtedness  due 
from  a  member  of  the  class  subject  to  the 
lien,  and  not  the  capacity  in  which  he  becomes 
indebted,  that  controls,  and,  in  the  absence  of 
any  evidence  that  the  bonds  were  relied  on 
exclusively,  there  is  no  reason  for  assuming 
that  it  was  not  the  intent  of  the  association 
to  create  a  lien  on  the  shares  because  of  the 
fact  that  a  bond  was  taken.  Jewell  v.  Nuhn 
(Iowa)   1918D-356.  (Annotated) 

8.  Estoppel. — That  a  stockholder  in  a  build- 
ing and  loan  association  with  whom  another 
stockholder  pledged  his  stock  as  collateral 
security  was  sent  statements  showing  that 
the  books  of  the  association  had  been  audited, 
and  that,  from  an  examination  of  the  books 
an  I  accounts  of  the  secretary  and  treasurer, 
the  person  making  the  audit  found  nothing 
to  indicate  a  lack  of  faithful  performance 
of  duty  on  the  part  of  such  ofTicers,  does  not 
estop  the  association  from  asserting  a  lien 
on  the  pledged  stock  for  an  amount  em- 
bezzled by  the  pledgor  while  secretary  of 
the  association,  since  the  persons  making  the 
audit  and  mailing  the  statements  to  the 
pledgee  were  his  agents  as  well  as  the  agents 


BUILDIXG  CONTRACTS— CARRIERS. 


51 


of  his  fellow  stockholdera. 
(Iowa)   1918D-356. 


Jewell  V.  Niihii 
(Annotated) 


BUILDING  CONTRACTS. 

See  Contracts,  24-36, 

See  Mechanics'  Liens,  1-15. 

Assignment  of  proceeds  of  claims  on  build- 
ing contracts,  see  Assignments,  3-14. 

Subrogation  of  surety  of  contractor,  see  SuB- 
BOGATION,  3. 


BUILDINGS. 

Destruction  during  erection  as  affecting  right 
of  contractor  to  compensation,  see  Cou- 
TBACTS,  28-30,  32. 

Party  wall  rights,  see  Adjoining  Landown- 
EBS,  1-3. 


BURDEN   OF   PROOF. 

See  Evidence,  39. 

BURYING    GROUNDS. 

See  Cemetebies. 

BUSINESS. 

Injunction  against  criminal  prosecution  on 
account  of  injury  to  business,  see  In- 
junctions. 12. 

Power  to  regulate  as  including  power  to  li- 
cense, see  Licenses,  2. 
.  Regulation  of  business,  see  Constitutionai, 
Law,  6-9. 

BUTCHER. 

Licensing,  see  Licences,  4-6. 

BY-LAWS. 

See  Building  and  Loan  Associations,  1-11, 
15,  16. 

Conflict  between  policy  and  by-laws  of  bene- 
ficial association,  see  Insueance,  50. 

CALL. 

Necessity  of  notice  to  call  for  unpaid  stock 
subscriptions,  see  Corporations,  31. 

CANCELLATION. 

See  Rescission,  Cancellation  and  REFORii- 
ation. 


CANDIDATES. 

Criticism  of  candidates  for  office  as  libel  or 
slander,  see  Libel  and  Slander,  1,  7-9, 
25,  26. 

Withdrawal  of  candidacy,  see  Elections,  Il- 
ls. 


CAPIAS   AD   RESPONDENDUM. 

Raising  question  of  error  in  refusal  to  quash 
writ  of  capias  ad  respondendum,  see  Ap- 
peal AND  Error.  63. 


CARRIERS. 

See  Carriers  of  Goods;  Carriers  of  Live 
Stock;  Carriers  of  Passengers;  Fer- 
ries;  Railroads;   Street  Railways. 

Effect  of  partial  invalidity  of  Reciprocal  De- 
murrage Act,  see  Statutes,  8. 

Nature  of  duly  owed  to  person  riding  in  au- 
tomoWle  as  guest,  see  Automobiles,  14. 

Right  of  individual  or  corporation  to 
use  streets  as  common  carriers,  see 
Streets  and  Highways,  2-6. 

1.  Regulation  of  rates. — In  considering  the 
reasonableness  of  a  rate  fixed  by  the  rail- 
road commissioners  for  the  transportation  of 
any  particular  class  of  freight,  the  question 
is  whether  the  entire  revenue  produced  from 
the  particular  traffic  affords  a  substantial 
income  for  the  service  over  the  cost  of  ren- 
dering it.  State  V.  Florida  East  Coast  R. 
Co.   (Fla.)   1918E-1206.  (Annotated) 

2.  In  ascertaining  the  cost  to  or  expense  in- 
curred by  a  railroad  carrier  in  handling  a 
particular  class  of  traffic,  interest  on  bonds 
and  taxes  should  not  be  included  in  the  es- 
timate, but  the}'  are  matters  to  be  considered 
in  determining  whether  the  rate  to  be  en- 
forced provides  a  reasonable  or  fair  compen- 
sation. State  V.  Florida. East  Coast  R.  Co. 
(Fla.)   1918E-1206.  (Annotated) 

3.  Where  the  reasonableness  of  a  rate  fixed 
by  the  railroad  commissioners  for  the  trans- 
portation of  a  particular  class  of  freight  is 
attacked  by  the  carrier,  against  whom  it  is 
sought  to  be  enforced,  upon  the  ground  that 
the  rate  prescribed  will  require  the  carrier 
to  perform  a  service  without  reasonable  com- 
pensation therefor,  or  upon  the  ground  that 
the  order  was  made  without  any  evidence  to 
support  it,  the  burden  is  upon  the  carrier  to 
establish  by  evidence  which  is  clear  and  satis- 
factory such  ground  of  defense.  State  v. 
Florida  East  Coast  R.  Co.  (Fla.)  1918E- 
1206. 

4.  Evidence  examined,  and  found  not  to 
show  clearly  and  satisfoctorily  that  the  or- 
der made  by  the  railroad  commissioners,  af- 
fecting the  carriage  of  commodities  included 
in  Class  P  traffic  by  the  respondent  railroad, 
would  compel  the  respondent  to  carry  such 
commodities  at  a  loss,  or  without  substantial 
compensation.  State  v.  Florida  East  Coast 
R.  Co.   (Fla.)   191SE-1206. 

5.  Presumption  in  favor  of  order. — The  or- 
ders of  the  railroad  commissioners  prescrib- 


6^ 


AXX  CAS.  DIGEST  (1918G-1918E). 


ing  a  rate  to  be  charged  by  railroad  cor- 
porations for  the  transportation  of  freight, 
being  within  the  scope  of  the  railroad  com- 
missioners' power,  are  prima  facie  reasonable 
and  just,  and  properly  made  and  arrived  at 
in  due  form  of  procedure,  and  such  as  ought 
to  have  been  made  in  the  premises.  State 
V.  Florida  East  Coast  R.  Co.  (Fla.)  1918E- 
1206. 

6.  Testim&ny  of  commissioners  to  show 
regularity. — Upon  the  question  of  whether 
the  railroad  commissioners  made  an  order 
relating  to  the  carriage  of  freight  by  railroad 
carriers  Avithout  any  evidence  before  them 
upon  which  to  base  such  order,  they  may 
be  called  as  witnesses,  and  required  to  tes- 
tify whether  in  fact  any  evidence  wa«  sub- 
mitted to  and  considered  by  them  as  the  basis 
for  such  order.  State  v.  Florida  East  Coast 
R.   Co.    (Fla.)    1918E-1206. 

7.  Reciprocal  demurrage  act — Construction. 
—Section  6162,  Rev.  St.  1913,  construed,  and 
held  that  the  duty  of  a  railway  company  to 
make  prompt  delivery  of  cars  is  not  ended 
when  the  cars  are  placed  upon  a  "hold  track" 
to  await  orders  from  the  consignor  or  con- 
signee, but  the  running  of  the  time  allowed 
by  such  section  for  delivery  is  only  sus- 
pended while  cars  are  so  held.  Sunderland 
Bros.  Co.  V.  Missouri  Pac.  R.  Co.  (Neb.) 
1918I>-1120. 


CARRIERS    ar    GOODS. 

1.  Transportation  and  Delivery  to  Consignee, 

52. 

2.  Bills  of  Lading,  52. 

3.  Loss  of  or  Injury  to  Goods,  52. 

4.  Limitation  of  Liability,  52. 

5.  Charges,  53. 

6.  Connecting  Carriers,  53. 

7.  Actions  for  Loss,  Injury  or  Delay: 

a.  In  General,  53. 

b.  Evidence,    53. 

c.  Damages,  54. 

See  Cabbiebs;  Cabbiebs  of  Live  Stock. 
Duty  to  make  prompt  delivery  of  cars  under 

Reciprocal    Demurrage    Act,    see    Cabbt- 

b:«s,  7. 

1.  Transportation  and  Delivery  to  Consignee. 

1.  The  liabilities  of  a  carrier  depend,  not 
only  on  its  contract,  but  also  on  obligations 
imposed  by  law,  and  the  law  imposes  the 
duty  upon  a  carrier  to  transport  and  deliver 
to  the  consignee  within  a  reasonable  time 
goods  which  have  been  intrusted  to  it. 
Florida  East  Coast  R,  Co.  v.  Peters  (Fla.) 
1918D-121. 

2.  Unexpected  congestion  of  trafiSc. — ^Wlien 
an  emergency  arises  and  a  carrier  unexpect- 
edly has  more  business  than  it  can  accom- 
modate, and  it  receives  goods  without  notice 
to  the  shipper  on  the  probable  delay,  and 
fails  to  obtain  his  assent,  express  or  implied, 
to  the  delay,  it  is  bound  to  transport  the 
goods    within    a    reasonable    time,    notwith- 


standing the  emergency.    Florida  East  Coast 
R.   Co.   v.    Peters    (Fla.)    1918D-121. 

(Annotated) 
3.  Delay  of  consignee  in  removing  goods. — 
Where  potatoes  shipped  by  rail  and  steamer 
have  been  in  the  steamship  company's  ware- 
house at  destination  to  the  knowledge  of  the 
consignee  more  than  six  days,  the  railroad 
which  handled  the  shipment  is  not  liable  for 
loss  by  freezing;  its  carrier's  liability  hav- 
ing terminated.  Barber  v.  Detroit,  etc.  R. 
Co.    (MichJ    1918E-1109.  (Annotated) 


# 


2.  Bills  of  Lading. 


4.  Effect  of  filing  with  interstate  commerce 
commission. — While  tlie  legal  conditions  and 
limitations  in  a  railroad  company's  bill  of 
lading,  the  form  of  which  was  duly  filed  with 
the  interstate  commerce  commission  as  part 
of  its  tariffs,  are  binding  until  changed  by 
that  body,  illegal  conditions  and  limitations 
are  void  though  so  filed.  Boston,  etc.  R.  Co. 
V.  Piper  (U.  S.)  1918E-469. 

3.  Loss  of  or  Injury  to  Goods. 

5.  Proximate  cause  of  damage. — Where  po- 
tatoes shipped  by  rail  reached  destination 
three  days  late,  but  it  could  not  be  s^aid 
with  any  certainty  that  if  they  had  reached 
destination  on  schedule  none  of  them  would 
have  been  frozen,  the  railroad  was  not  liable 
to  the  shippers  for  damages  from  freezing. 
Barber  v.  Detroit,  etc.  R.  Co.  (Mich.)  1918E- 
1109. 

4.  Limitation  of  Liability. 

6.  Notice  of  claim — Construction  of  con- 
tract.— A  contract  between  a  carrier  and  ship- 
per for  the  transportation  of  goods,  contsiin- 
ing  the  following  stipulation:  Claims  for  loss 
or  damage  must  be  made  in  writing  to  this_ 
company  within  ten  days  after  arrival  of  the 
goods  at  their  place  of  ultimate  destination 
in  case  of  fruit,  vegetables,  and  other  perish- 
able articles,  and  within  thirty  days  after 
arrival  at  ultimate  destination  in  case  of 
other  freight,  and  unless  claims  are  so  made 
this  company  shall  not  be  liable — even  if 
valid  and  enforceable — relates  only  to  claims 
for  the  loss  of  or  injury  to  goods,  and  has 
no  applicability  to  an  action  for  special 
damages  occasioned  by  negligent  delay  in  the 
transportation  of  goods.  Florida  East  Coast 
R.  Co.  v.  Peters  (Fla.)  1918D-121. 

7.  Sufficiency  of  notice. — In  a  consignee's 
action  for  damages  to  tomatoes  shipped  under 
a  bill  of  lading,  requiring  notice  of  a  claim 
for  damage  to  be  made  in  writing  to  the 
agent  at  place  of  delivery  upon  arrival,  or 
within  ten  days  after  delivery,  the  consignee's 
timely  presentation  of  a  written  statement 
of  a  report  of  their  condition,  signed  by  the 
carrier's  inspector,  bearing  the  name  of  the 
consignee,  stating  the  damage  and  manner 
in  which  it  occurred,  and  that  the  consignee 
would  repack  the  tomatoes  and  claim  dam- 
ages, is  a  sufficient  notice.  United  Brokers 
Co.  V.  Southern  Pac.  Co.  (Ore.)  1918D-814. 

(Annotated) 

8.  A   stipulation   as   to  notice   of   a   claim 


CARRIERS  OF  GOODS. 


53 


for  injury  to  goods  while  being  transported 
by  a  common  carrier  should  be  given  a  rea- 
sonable construction,  and  a  substantial  com- 
pliance therewith  is  all  that  is  required,  in 
view  of  the  object  of  the  requirement  of 
notice.  United  Brokers  Co.  v.  Southern  Pac. 
Co.    (Ore.)    1918D-814.  (Annotated) 

5.  Charges. 

9.  Liability  of  consignee  for  freight  charge. 
— The  consignor  or  shipper  is  primarily  lia- 
ble to  the  carrier  for  the  freight.  But  if  the 
consignee,  the  presumed  owner,  accepts  an 
interstate  shipment  and  pays  part  of  the 
freight,  the  law  implies  an  agreement  on  his 
part  to  pay  the  balance  to  the  carrier,  where, 
as  here,  the  carrier,  at  the  time  of  the  de- 
livery of  the  shipment,  has  no  knowledge  of 
the  arrangement  between  the  consignor  and 
consignee  as  to  the  payment  of  the  freight, 
and  the  consignor  then  is  and  ever  since  has 
been  insolvent.  Chicago,  etc.  R.  Co.  v.  Green- 
berg  (Minn.)   1918E-456. 

10.  In  an  action  by  a  railroad  company  to 
recover  a  balance  of  the  legal  freight  upon 
an  interstate  shipment  from  the  consignee 
who  had  accepted  the  shipment,  paid  the 
amount  of  the  freight  erroneously  understat- 
ed in  the  bill  of  lading,  and  settled  with  the 
consignor  upon  that  basis,  the  defense  of  es- 
toppel is  not  available,  for  the  consignee  is 
conclusively  presumed  to  have  had  knowledge 
of  the  published  legal  rate.  Chicago,  etc.  R. 
Co.  V.  Greenberg  (Minn.)  1918E-456. 

(Annotated) 

6.  Connecting  Carriers. 

11.  Presumption  against  terminal  carrier, 
— Without  evidence  locating  the  place  of  the 
damage  to  goods  in  transit  over  several  con- 
necting lines,  and  where  it  appears  that  the 
goods  were  delivered  to  the  initial  carrier  in 
good  condition,  and  were  delivered  by  the 
terminal  carrier  in  a  damaged  condition,  a 
presumption  arises  that  they  were  injured 
on  the  line  of  the  terminal  carrier,  and  the 
burden  of  proof  is  on  it  to  show  that  the 
damage  was  not  done  on  its  line,  and  that 
it  occurred  without  its  fault  or  through  the 
shipper's  failure  to  perform  his  contract. 
United  Brokers  Co.  v.  Southern  Pac.  Co. 
(Ore.)  1918D-814. 

7.  Actions  for  Loss,  Injury  or  Delay. 

a.   In  General. 

12.  Persons  entitled  to  sue. — In  order  to 
maintain  an  action  against  a  carrier  for  the 
recovery  of  damages  occasioned  by  negligence 
in  the  transportation  or  delivery  of  goods, 
either  ex  contractu  or  ex  delicto,  the  plain- 
tiff does  not  have  to  be  the  absolute  owner 
of  the  goods.  If  the  plaintiff  has  a  special 
interest  therein  and  his  legal  rights  have 
been  invaded,  that  would  entitle  him  to 
maintain  the  action.  Florida  East  Coast  R. 
Ce.  v.  Peters   (Fla.)   1918D-121. 

13.  ^Vhere  goods  are  intrusted  to  a  carrier 
for  transportation  and  delivery,  the  carrier 
thereby   has   notice   of   the   interest   of   both 


the  consignor  and  the  consignee;  and,  if 
either  suffers  an  injury  through  the  negligent 
delay  in  the  transportation  or  delivery  of 
the  goods,  the  person  so  suffering  such  injury 
may  bring  an  action  against  the  carrier  to 
obtain  redress  for  such  injury.  Florida  East 
Coast  R.  Co.  V.  Peters  (Fla.)  1918D-121. 

14.  As  a  general  rule,  the  consignee  is 
prima  facie  entitled  to  bring  an  action 
against  a  carrier  for  the  loss  of  or  injury  to 
goods  or  for  negligent  delay  in  their  trans- 
portation or  delivery,  since  it  is  a  pre- 
sumption of  law  that  on  the  delivery  of 
goods  to  a  carrier  the  title  thereto  vests  in 
the  consignee,  and  when  the  consignee  is 
the  party  who  has  been  damaged,  with  which 
damage  the  consignor  has  no  especial  con- 
cern, the  consignee  is  the  proper  party  plain- 
tiff", especiallv  in  an  action  ex  delicto. 
Florida  East  Coast  R.  Co.  v.  Peters.  (Fla.) 
1918D  121. 

15  The  common-law  rule  was  that  an  ac- 
tion for  a  tort  must  in  general  be  brought 
in  the  name  of  the  person  whose  legal  rights 
has  been  infringed.  Where  the  consignee 
has  suffered  special  damages  from  the  negli- 
gent delay  in  the  transportation  or  delivery 
of  goods  by  a  carrier,  the  consignee  is  the 
proper  party  plaintiff  in  an  action  ex  delicto, 
being  "the  real  party  in  interest"  within  the 
intent  and  meaning  of  section  1365  of  the 
General  Statutes  of  1906,  providing  that 
'"any  civil  action  at  law  may  be  maintained 
in  the  name  of  the  real  party  in  interest." 
Florida  East  Coast  R.  Co.  v.  Peters  (Fla.) 
1918D  121. 

b.  Evidence. 

16.  Burden  of  proof. — In  an  action  by  the 
consignee  against  a  carrier  for  the  recovery 
of  damages  occasioned  by  the  negligent  delay 
of  the  carrier  in  the  transportation  and  de- 
livery to  the  consignee  of  several  shipments 
of  crate  material  for  the  use  of  the  con- 
signee in  the  shipment  of  his  crop  of  toma- 
toes, it  is  incumbent  upon  the  plaintiff  to 
prove  by  competent  evidence  the  amount  of 
damages  which  he  has  suffered  as  a  proximate 
result  of  such  negligent  delay.  Florida  East 
Coast  R.  Co.  T.  Peters  (Fla.)  1918D-121. 

17.  Proof  of  damage. — In  a  consignee's  ac- 
tion against  a  carrier  for  damages  to  a 
shipment '  of  tomatoes,  the  consignee's  bills 
and  the  ledger  account  showing  the  amount 
charged  to  the  parties  to  whom  the  tomatoes 
were  sold,  presumably  oh  account  of  their 
damaged  condition,  without  evidence  to  show 
that  the  items  represented  the  actual  dam- 
age, are  properly  excluded.  United  Brokers 
Co.  V.  Southern  JPae.  Co.  (Ore.)  1918D-814. 

18.  In  an  action  by  a  consignee  against  a 
carrier  for  the  recovery  of  damages  occa- 
sioned by  negligent  delay  in  the  transporta- 
tion of  crate  material  to  be  used  by  the  con- 
signee in  the  shipment  of  tomatoes,  it  is 
error  to  permit  the  plaintiff  to  testify,  over 
the  objection  of  the  defendant,  as  to  what 
amount  of  fertilizing  material  he  had  used  in 
making  his  crop  and  of  what  such  material 
consisted:  such  testimony  not  being  pertinent 


54 


ANK  CAS.  DIGEST  (19180-1918E). 


to  the  issues.     Florida  East  Coast  R.  Co.  v. 
Peters  (Fla.)   1918D-121, 

19.  Evidence  as  to  preliminary  negotia- 
tions.— In  an  action  by  a  consignee  against  a 
carrier  for  the  recovery  of  damages  occa- 
sioned by  negligent  delay  in  the  transporta- 
tion of  goods,  it  may  not  constitute  revers- 
ible error  to  permit  the  plaintiff  to  introduce 
documentary  evidence,  consisting  of  letters 
and  telegrams  which  had  passed  between  the 
plaintiff  and  the  defendant,  even  if  this  evi- 
dence was  incomplete  in  itself,  and  insuffi- 
cient to  show  knowledge  or  notice  to  the 
defendant  of  any  special  damages  which  the 
plaintiff  might  sustain  by  reason  of  delay  in 
the  transportation,  since  such  evidence  tend- 
ed to  throw  light  upon  the  preliminary  nego- 
tiations taking  place  between  the  plaintiff 
and  the  defendant  and  to  explain  the  sub- 
sequent notice  which  was  given  to  the  de- 
fendant. This  may  likewise  be  true  as  to 
testimony  of  conversations  between  the 
plaintiff  and  the  defendant.  Florida  East 
Coast  R.  Co.  v.  Peters  (Fla.)  1918D-121. 

c.  Damages. 

20.  Special  damages — Notice. — In  an  ac- 
tion against  a  carrier  for  the  recovery  of 
damages  occasioned  by  the  negligent  delay  in 
the  transportation  of  goods,  whether  brought 
by  the  consignor  or  consignee,  only  such  dam- 
ages may  be  recovered  as  were  contemplated 
or  might  reasonably  be  supposed  to  have 
entered  into  the  contemplation  of  the  par- 
ties to  the  contract  of  carriage.  In  order  to 
charge  the  carrier  with  any  special  damages, 
it  is  incumbent  upon  the  plaintiff  to  show 
that  at  the  time  of  the  shipment  of  the  goods 
the  carrier  had  notice  or  knowledge  of  such 
special  facts  and  circumstances  as  to  require 
expedition  in  the  transportation  of  the  goods, 
and  that  special  damages  would  ensue  by  rea- 
son of  negligent  delay.  Florida  East  Coast 
R.  Co.  V.  Peters  (Fla.)  1918D-121. 

21.  Notification  of  express  company,  upon 
delivery  to  it  for  shipment  of  moving  picture 
films,  that  the  films  are  to  be  "rushed"  be- 
cause they  were  to  be  exhibited,  is  insuffi- 
cient basis  to  render  the  express  company, 
upon  delay  in  such  shipment,  liable  for  special 
damages,  consisting  of  the  receipts  or  profits 
which  the  consignee  lost  by  nonattendance  in 
his  theater  owing  to  failure  to  receive  the 
films  in  time  to  exhibit  them  as  advertised, 
based  on  evidence  that  the  pictures  shown  by 
the  films  were  of  an  unusually  attractive 
character,  had  been  specially  advertised  to  be 
exhibited,  and  would  have  been  attended  by 
a  large  number  of  persons  paying  a  higher 
price  than  was  charged  for  admission  to  the 
pictures  necessarily  shown  iji  lieu  of  those 
shipped;  such  notification  not  being  sufficient 
to  show  that  such  damages  were  within  the 
reasonable  contemplation  of  the  parties. 
Chapman  v.  Fargo  (N.  Y.)  1918E-10.54. 

(Annotated) 

22.  In  an  action  by  a  consignee  against  a 
carrier  for  the  recovery  of  damages  occa- 
sioned by  negligent  delay  in  the  transporta- 
tion of  crate  material,  it  is  harmful  error 
to  charge  that  special  damages  may  be  re- 


covered as  to  Avhich  no  notice  was  given 
though  such  charge  included  a  reference  to 
special  damages  arising  from  the  receipt  of 
other  crates  after  the  notice  was  given. 
And  this  error  is  not  rendered  harmless  by 
a  subsequent  charge  that  special  damages 
cannot  be  recovered  where  it  is  not  shown 
that  notice  was  given  of  the  anticipated 
special  damages.  Florida  East  Coast  R.  Co. 
V.  Peters   (Fla.)   1918D-121. 

23.  In  action  by  a  consignee  against  a  car- 
rier for  the  recovery  of  damages  occasioned 
by  negligent  delay  in  the  transportation  of 
crate  material,  unless  the  carrier  had  at  or 
before  the  receipt  of  the  crates  for  transpor- 
tation knowledge  or  notice  of  the  particular 
special  damages  that  would  result  from  an 
unreasonable  delay  in  the  transportation, 
such  special  damages  are  not  recoverable; 
and,  if  several  elements  of  unusual  or  special 
damages  would  proximately  result  from  the 
negligence,  there  must  have  been  notice  or 
knowledge  as  to  each  such  element  of  dam- 
ages as  a  probable  result  of  the  stated  negli- 
gence before  liability  for  such  special  damages 
arises  in  law.  Where  notice  was  given  to  the 
carrier  of  probable  special  damages  as  a 
result  of  unreasonable  delay  in  transporting 
crate  material  after  some  shipments  of  such 
crate  material  had  already  been  delivered  to 
the  carrier,  such  notice  cannot  be  held  to 
relate  back,  and  the  carrier  would  be  liable 
only  for  special  damages  as  for  shipments 
received  after  such  notice  was  given  to  it. 
Florida  East  Coast  R.  Co.  v.  Peters  (Fla.) 
1918r)-121. 

24.  It  is  doiibtless  true  that  common  car- 
riers are  supposed  to  take  notice  of  such 
natural  events  as  are  familiar  to  ordinary 
people.  They  will  be  held  to  a  knowledge 
of  seedtime  and  harvest,  and  of  the  general 
customs  relating  thereto  in  the  territory 
where  they  do  business.  Even  so.  knowledge 
by  a  carrier  of  the  fafct  that  a  shipper  on  its 
line  has  about  four  hundred  acres  planted 
in  tomatoes  would  not  carry  with  it  the 
additional  knowledge  when  such  tomatoes 
would  be  ready  for  the  shipment  thereof  to 
begin  or  when  the  shipper  would  need  crates, 
the  number  thereof  that  he  would  need,  or 
that  a  few  days'  delay  in  the  transporta- 
tion thereof  would  result  in  special  damages 
to  such  shipper.  Florida  East  Coast  R.  Co. 
V.  Peters  (Fla.)  1918D-121. 

25.  A\Tiere  losses  and  injuries  are  not  a 
necessary,  or  a  usual  and  ordinary,  but  a 
proximate  though  unusual,  result  of  action- 
able negligeiice,  such  losses  and  injuries  may 
be  compensated  for  by  the  recovery  of  special 
damages;  but  the  negligent  party  cannot 
lawfully  be  made  to  respond  in  damages  for 
losses  that  do  not  usually  result  from  or 
could  not  ordinarily  have  been  foreseen  as- 
a  proximate  result  of  a  particular  negligence, 
unless  it  be  shown  that  there  was  knowledge 
or  notice  on  the  part  of  the  negligent  person 
that  such  losses  would  or  might  follow  as  a. 
proximate  result  of  a  particular  negligence. 
Florida  East  Coast  R.  Co.  v.  Peters  (Fla.)- 
1918D-121. 


CARRIERS  OF  LIVE  STOCK— CARRIERS  OF  PASSEI^GERS.    55 


CARRIERS    OF    LIVE    STOCK. 

See  Cabbieks;  Carkiebs  of  Goods. 

1.  Deviation  from  agreed  method  of  trans- 
portation.— The  contract  of  carriage  by  ex- 
press of  a  car  of  horses  is  abandoned  by  the 
carrier  putting  it  in  a  freight  train,  so  that, 
notwithstanding  stipulation  of  the  contract, 
on  which  the  rate  is  based,  that  the  carrier's 
liability  shall  in  no  event  exceed  the  agreed 
valuation  of  $100  for  each  horse,  the  shipper 
may  recover  the  entire  damage  to  them,  and 
this  though  it  is  an  interstate  shipment. 
Reynolds  v.  Adams  Express  Co.  (N.  C.) 
1918C-1071.  (Annotated) 

2.  Limitation  of  liability — Validity. — A 
provision  in  a  uniform  live  stock  agreement 
filed  with  the  Interstate  Commerce  Com- 
mission and  covering  an  interstate  shipment 
which  limited  the  shipper's  damages  for  im- 
usual  delay  resulting  from  negligence  to  the 
amount  actually  expended  by  the  shipper  in 
the  purchase  of  food  or  water  for  the  stock 
while  detained  is  invalid  as  a  contract  ex- 
empting the  carrier  from  liability  for  its 
own  negligence,  and  cannot  be  sustained  as 
a  contract  limiting  recovery  to  an  agreed 
valuation  in  consideration  of  a  reduced  rate. 
Boston,  etc.  R.  Co.  v.  Piper  (U.  S.)  1918E- 
469.  (Annotated) 

3.  Waiver  of  notice  of  claim. — Require- 
ment in  contract  of  shipment  for  written 
notice  of  claim  within  thirty  days  will 
be  regarded  waived,  where  the  carrier's 
agents  are  fully  cognizant  of  the  injury  to 
the  horse  shipped  and  the  attendant  circum- 
stances, and  the  carrier  sends  a  veterinary 
surgeon  to  treat  it.  Reynolds  v.  Adams  Ex- 
press Co.  (X.  C.)  1918C-1071. 


CARRIERS    OF    FASSEXGERS. 

1.  Tickets  and  Fares,  55. 

2.  Duty  in  Carriage  of  Passengers: 

a.  Duties  and  Liabilities  in  General,  55. 

b.  To  Protect  Passengers,   56. 

c.  To  Passenger  Boarding  or  Alighting, 

56. 

3.  Ejection,  56. 

4.  Contributory  Negligence,  56. 

5.  Actions  for  Injuries,  56. 

6.  Jitneys  and  Taxis,  56. 

See  Cabriebs;  Ferries;   Street  Railroads. 

1.  Tickets  and  Fares. 

1.  Tender. — A  passenger  need  not  tender 
the  exact  fare,  but,  if  he  tenders  a  reasonable 
sum,  the  carrier  must  accept  it  and  furnish 
change;  what  is  a  reasonable  sum  depending 
largely  upon  whether  the  carrier  is  a  steam 
railroad  or  a  street  railway,  and  upon  the 
ease  or  difficulty  in  handling  passengers  in 
each  locality.  Jones  v.  Louisville  R.  Co. 
(Miss.)    1918D-180.    .  (Annotated) 

2.  Where  plaintiff  tendered  the  defendant's 
conductor  a  $100  bill,  with  the  request  that 
the  conductor  return  the  necessary  change 
when   they  reached   destination,   the   size   of 


the  bill  is  immaterial  to  the  question  of  the 
reasonableness  of  the  amount  tendered. 
Jones  V.  Louisville,  etc.  R.  Co.  (Miss.)  1918D- 
180.  (Annotated) 

3.  Requiring  deposit  of  fare  in  box.— It  is 
a  reasonable  rule  for  a  street  railroad  to  re- 
quire its  passengers  personally  to  deposit 
the  fare  in  a  coin  and  ticket  collection  box. 
before  entering  the  car  when  such  regulation 
is  intended  to  facilitate  traffic.  Virginia  R. 
etc.  Co.  V.  OTlaherty    (Va.)    1918D-471. 

(Annotated) 

4.  Enforcement  of  rule,— Under  Code  1904, 
§  1294d,  providing  that  each  conductor  and 
motorman  on  cars  of  a  street  railroad  shall 
be  a  special  policeman,  and  have  all  the 
powers  of  conservators  of  the  peace,  when  a 
passenger  enters  the  car  without  paying  his 
fare,  and  refuses  to  deposit  it  in  the  coin 
and  ticket  collection  box  provided  for  the 
purpose,  as  required  by  the  rules  of  the  com- 
pany, the  conductor  may  detain  him  and 
carry  him  to  the  end  of  the  line,  and  there 
turn  him  over  to  a  regular  police  officer. 
Virginia  R.  etc.  Co.  v.  O'Flaherty  (Va.) 
1918D-471. 

2.  Duty  in  Carriage  of  Passengers. 

a.  Duties  and  Liabilities  in  General. 

5.  The  degree  of  care  imposed  on  a  carrier 
of  passengers,  such  as  a  street  railway,  by 
law  and  on  grounds  of  sound  public  policy, 
is  the  exercise  of  the  utmost  diligent  skill 
and  foresight.  Memphis  St.  R.  Co.  v.  Cavell 
(Tenn.)   1918C-42. 

6.  Duty  as  to  doors. — A  railroad  common 
carrier  is  not  bound  to  prevent  its  doors, 
after  being  opened  by  others,  from  closing 
when  its  train  is  in  motion,  and  it  commonly 
has  no  reason  to  expect  passengers  to  be 
standing  on  the  platform.  Shaughnessy  v. 
Boston,    etc.   R.    Co.    (Mass.)    1918C-376. 

(Annotated) 

7.  Where  a  passenger  on  defendant  rail- 
road, as  the  train  approached  her  destina- 
tion, and  while  it  was  several  hundred  feet 
away,  left  her  seat  and  went  through  the 
open  door  to  the  platform  and  stood  there 
with  her  hand  on  the  jamb  of  the  door  to 
steady  herself,  and,  when  the  train  stopped 
in  its  usual  manner,  the  door  swung  against 
her  fingers  and  injured  them,  it  is  hdd  that 
there  was  no  negligence  making  the  carrier 
liable.  Shaughnessy  v.  Boston,  etc.  R.  Co. 
(Mass.)   1918C-376.  (Annotated) 

8.  In  such  case,  there  is  no  ground  for  the 
application  of  the  doctrine  of  res  ipsa  loqui- 
tur. Shaughnessy  v.  Boston,  etc.  R.  Co. 
(]\rass.l   1918C-376.  (Annotated) 

9.  Concurring  negligence  of  other  railroad. 
— The  negligence  of  a  railroad  in  running  a 
freight  over  a  street  railway  crossing  does 
not  excuse  such  street  railway,  whose  con- 
ductor was  negligent  in  not  making  sure  of 
the  approach  of  the  freight  before  attempting 
to  cross,  from  liability  to  an  injured  passen- 
ger, since  the  passenger's  injuries  were  the 
proximate  result  of  the  conductor's  failure 


56 


ANX.  CAS.  DIGEST  (1918C-1918E). 


to  discharge  his  duty.     Memphis  St.  R.  Co. 
V.  Cavell   (Tenn.)    1918C-42. 

(Annotated) 

b.  To  Protect  Passengers. 

10.  Proximate  cause. — A  railroad  is  not 
liable  to  a  passenger  assaulted  and  robbed 
on  its  train,  the  cars  being  without  light 
and  badly  overcrowded,  there  being  no  causal 
connection  between  the  road's  supposed  neg- 
ligent act  in  overcrowding  and  failing  to  light 
its  cars  and  the  injury  charged  to  have  re- 
sulted therefrom.  Chancey  v.  Norfolk,  etc. 
.R.    Co.     (N.    C.)     1918E-580. 

(Annotated) 

c.  To  Passenger  Boarding  or  Alighting. 

11.  Allowing  time  to  find  seats. — A  com- 
mon carrier  does  not  as  a  matter  of  law 
owe  the  duty  of  stopping  its  trains  at  sta- 
tions for  a  time  sufficiently  long  to  enable 
passengers  who  have  gotten  on  safely  to  find 
seats.  Blume  v.  Chicago,  etc.  R.  Co.  (Minn.) 
1918D-297. 

3.  Ejection. 

12.  Reasonableness  of  tender. — ^In  an  ac- 
tion for  wrongful  ejection  from  defendant's 
train  for  refusal  to  pay  a  train  fare  of  four 
cents  a  mile,  after  the  defendant's  ticket 
agent  at  a  union  station  had  refused  to 
change  a  $100  bill  tendered  by  plaintiff  in 
payment  of  a  fare  of  $2.01,  at  three  cents  a 
mile,  the  evidence  is  held  to  make  the  reason- 
ableness of  the  sum  tendered  a  question  for 
the  jury.  Jones  v.  Louisville  (Miss.)  1918D- 
180.      '  (Annotated) 

13.  Violation  of  rules. — A  street  car  com- 
pany's rule  that  its  conductor  should  request 
passengers  to  enter  the  car  and  move  forward 
and  endeavor  to  keep  the  rear  platform  clear 
at  all  times,  adopted  to  promote  the  safety 
of  passengers  and  the  efficiency  of  the  serv- 
ice, is  a  proper  and  reasonable  rule  to  which 
passengers  are  bound  to  conform  when  its 
requirements  can  be  reasonably  enforced;  so 
that,  where  plaintiff,  on  request,  refused  to 
leave  the  rear  platform  and  enter  the  car, 
where  there  was  standing  room,  though 
at  the  rear  entrance  it  appealed  to  be  crowd- 
ed, and  the  conductor,  after  a  repeated  re- 
quest, attempted  to  put  him  off,  but  did  not 
succeed,  and  did  not  make  any  wanton  or 
reckleS*  assault,  plaintiff  cannot  recover. 
Combs  v.  Southern  Wisconsin  R.  Co.  (Wis.) 
1918C-532.  (Annotated) 

4.  Contributory  Negligence. 

14.  A  passenger  on  a  steam  railroad  is  not 
justified  in  incurring  risks  unnecessarily, 
however  small  the  chance  may  be  that  he 
will  suffer  thereby.  Shaughnesay  v.  Boston 
etc.  R.  Co.  (Mass')  19180-376. 

5.  Actions  for  Injuries. 

15.  Questions  for  jury. — ^Where  the  motor- 
man  of  the  defendant  carrier  knew  that 
passengers  were  upon  the  left-hand  running 
board,  that  he  was  on  a  curve,  and  that  the 


other  defendant's  car  of  unusual  width  was 
approaching,  the  question  of  the  defendant's 
negligence  is  for  the  jurv.  Walsh  v.  Boston 
El.  R.  Co.   (Mass.)    1918C-443. 

16.  The  negligence  of  the  defendant,  whose 
car,  moving  on  an  adjoining  track  in  the 
opposite  direction,  struck  plaintiffs  is  for 
the  jurv.  Walsh  v.  Boston  El.  R.  Co.  (Mass.) 
1918C-443. 

17.  Evidence  in  an  action  for  personal  in- 
jury from  collision  with  a  car  of  the  other 
defendant  on  an  adjoining  track,  while  rid- 
ing on  the  left-hand  running  board  of  the 
defendant  carrier's  car,  is  held  to  make  the 
plaintiffs'  contributory  negligence  in  riding 
in  such  position  for  the  jurv.  Walsh  v.  Bos- 
ton El.  R.  Co.   (Mass.)   1918C-443. 

(Annotated) 

18.  In  an  action  against  a  street  railway 
for  injuries  to  a  passenger,  where,  under  all 
the  evidence,  no  reasonable  difference  of 
opinion  can  exist  as  to  the  negligent  char- 
acter of  the  acts  of  defendant's  employees 
at  a  railroad  crossing  under  the  particular 
circumstances  and  at  a  particular  time,  the 
act  is  negligent  in  law,  and  there  is  no  issue 
for  the  jury  on  the  question  of  the  negli- 
gence. Memphis  St.  R.  Co.  v.  Cavell  (Tenn.) 
1918C-42. 

6.  Jitneys  and  Taxis. 

19.  Regulation. — One  formerly  engaged  in 
operating  a  motor  vehicle  for  hire  upon  the 
streets  of  Seattle,  having  complied  with 
Laws  1915,  p.  227  (Rem.  Code  1915,  §  5562- 
37  et  seq.),  but  who  is  now  unable  to  meet 
the  statutory  requirements,  because  unable 
to  furnish  a  bond,  is  not  entitled  to  the 
privilege.  Hadfield  v.  Lundin  (Wash.) 
1918C-942.  (Annotated) 

20.  Laws  1915,  p.  227  (Rem.  Code  1915, 
§  5562-37  et  seq.),  requiring  of  persons,  en- 
gaged in  business  of  transporting  passengers 
on  streets  in  motor  vehicles,  a  bond  running 
to  the  state  with  good  and  sufficient  surety 
company  licensed  to  do  business  in  the  state 
as  surety,  is  not  complied  with  by  a  bond 
from  a  company  authorized  to  write  indem- 
nity insurance,  indemnifying  such  person  and 
by  him  assigned  to  the  state  for  benefit  of 
persons  injured.  Hadfield  v.  Lundin  (Wash.) 
1918C-942'.  (Annotated) 


CEMETERIES. 

1.  Cemetery  association— ^Right  to  vote. — 
Creditors  of  a  cemetery  company,  under  the 
general  laws  relating  to  cemeteries,  have  no 
right  to  vote  at  an  election  of  trustees. 
Bonynge  v.  Frank   (X.  J.)    1918D-211. 

2.  Disinterment  and  removal  of  remains. — 
A  court  of  equity,  notwithstanding  the  ab- 
sence of  legislation  on  the  subject,  has  power, 
in  its  sound  judicial  discretion,  to  authorize 
the  removal  of  graves  or  cemeteries  in  a 
proper  case,  after  due  consideration  of  all 
the  facts,  and  with  due  regard  to  the  rights 
and  feelings  of  all  concerned.  Grinnan  v. 
Fredericksburg  Lodge    (Va.)    1918D-729. 

(Annotated) 


CERTIFICATES— CHATTEL  MORTGAGES. 


57 


3.  A  Masonic  Lodge  in  1784  was  given  a 
one-half  acre  lot  in  trust  for  the  use  of  the 
lodge,  and,  shortly  afterwards  by  acts,  but 
without  a  formal  dedication,  set  it  aside  as 
a  burial  place  for  its  deceased  members,  and 
received  contributions  for  the  erection  of  a 
"George  Washington  Memorial  Temple,"  and 
in  1912  resolved  that  the  remains  of  those 
interred  in  the  proposed  site  of  such  temple 
should,  in  a  reverent  and  proper  manner,  be 
disinterred  and  removed  to  another  part  of 
the  lot,  with  the  right  of  relatives  to  take 
the  remains  for  interment  elsewhere.  On  a 
bill  by  parties,  alleging  that  their  ancestors 
had  been  buried  in  the  cemetery  to  enjoin 
such  removal,  as  an  injury  to  their  rights 
and  feelings,  it  appeared  that  the  cemetery 
had  been  neglected  and  had  become  unsight- 
ly, and  that  the  erection  of  the  temple  would 
probably  result  in  beautifying  and  caring  for 
the  burial  part  of  the  lot.  It  is  held  in  view 
of  Code  1904,  §  1416a,  permitting  removal  of 
cemeteries  under  certain  circumstances  and 
conditions,  that  the  proposed  removal  would 
not  be  enjoined.  Grinnan  v.  Fredericksburg 
Lodge   (Va.)   1918D-729.  (Annotated) 

4.  Nature  of  interest  in  burial  lot. — The 
interest  which  one  may  have  in  a  burial  lot 
in  a  cemetery  is  not  a  fee,  but  is  a  privilege 
or  license  to  make  interments  in  the  lot  ex- 
clusively of  others,  as  long  as  the  cemetery 
remains  as  such.  Grinnan  v.  Fredericksburg 
Lodge    (Va.)    1918r)-729.  (Annotated) 


CERTIFICATES. 

Necessity  for  architect's  certificate  under* 
building  contract,  see  Coxtbacts,  31, 
32. 


CERTIFIED    QUESTION. 

See  Appeal  and  Error,  13. 


rno 


CERTIORARI. 


Review  of  proceedings  in  juvenile  court,  see 
Infants,  13. 

1.  Presumption  as  to  findings. — The  su- 
preme court,  on  certiorari  to  quash  a  judg- 
ment of  the  court  of  appeals  on  the  ground 
of  the  refusal  by  the  court  of  appeals  to 
follow  the  last  previous  ruling  of  the  su- 
preme court,  will  presume  that  the  court  of 
appeals,  undertaking  to  state  the  facts, 
stated  all  the  facts  of  record  on  the  question 
in  issue.     State  v.  Ellison  (Mo.)  19180-1. 


CHALLENGE. 

Of  voter,  see  Elections,  10. 
To  jury,  see  Jury,  2-10. 


CHAMPERTY    AND    MAINTENANCE. 

Validity  of  provision  against  interest  in  con- 
tract of  insurance,  see  Interest,  1.. 


CHARACTER. 

Proof  of  character  to  impeach  witness,  see 
Witnesses,  14,  17. 

Proof  of  good  reputation  to  corroborate  wit- 
ness, see  Witnesses,  16. 


CHARITIES. 

1.  Hospital  as  charity. — A  hospital  organ- 
ized and  maintained  with  funds  donated,  car- 
ing for  all  sick  and  injured  persons  brought 
to  it,  charging  those  who  are  able  to  pay  and 
treating  free  of  charge  those  who  are  not, 
operated  under  a  board  of  trustees  consist- 
ing of  the  Protestant  Episcopal  bishop  and 
the  rector  and  church  wardens,  is  a  charitable 
institution.  Bishop  Randall  Hospital  v. 
Hartley  (Wyo.)   1918E-1172. 

2.  Validity  of  gift. — A  bequest  to  trustees 
"for  such  public,  benevolent  or  charitable 
purposes  in  connection  with"  a  certain  parish 
as  the  trustees  in  their  discretion  shall  think 
proper  is  void  for  uncertaintiy.  Houston  v. 
Burns    (Eng.)    1918C-434.  (Annotated) 

3.  Bequest  of  income — Making  up  defi- 
ciency.— ^Where  testator  bequeaths  the  in- 
come of  certain  portion  of  his  property  in 
trust  to  a  charity,  and  placed  a  limitation 
thereon,  a  deficiency  in  income  of  one  year 
cannot  be  made  up  out  of  the  excess  of  an- 
other. Parkhurst  v.  Ginn  (Mass.)  1918E- 
982. 

4.  Liability  for  negligence  of  employee. — 
A  charitable  institution  operating  a  hospital 
is  not  liable  for  injuries  to  patients  due  to 
negligence  of  nurses  employed  in  the  hospi- 
tal, in  the  absence  of  its  own  primary  negli- 
gence in  hiring  incompetent  nurses.  Bishop 
Randall  Hospital  v.  Hartley  (Wyo.)  1918E- 
1172.  (Annotated) 


CHARTER. 

See  Municipal  Corporations,  1-6,  11. 

CHATTEL  MORTGAGES. 

See  Mortgages. 

Assignment  of  proceeds  of  building  contract 

as  chattel  mortgage,  see  Assignments,  8, 

9. 
Instrument    as     mortgage     or     pledge,     see 

Pledge,  1,  2. 
Validity  of  assignment  of  corporate  stock  as 

collateral  security  as  against  trustee  in 

bankruptcy,  see  Bankruptct,  2. 

1.  Necessity  of  recording. — A  chattel  mort- 
gage, even  if  not  recorded,  is  valid  and  bind- 
ing between  the  parties.  Martin  t.  Bankers 
Trust  Co.   (Ariz.)   1918E-1240. 


^8 


AA^X.  CAS.  DIGEST  (1918C-19X8EJ. 


2.  Mortgage  on  stock  of  goods. — A  chattel 
mortgage  upon  future-acquired  personal  prop- 
erty or  a  tluctuating  stock  of  goods  is  valid 
as  between  mortgagor  and  mortgagee. 
Kenney  v.  Hurlburt   (Ore.)    1918E-737. 

(Annotated) 

3.  Where  the  lender  to  a  purchaser  of  a 
stock  of  goods  made  the  loan  in  good  faith 
and  took  a  chattel  mortgage  on  tlie  stock  as 
security,  believing  that  the  mortgage  was 
security,  and  such  mortgage  was  not  given 
for  the  benefit  of  the  purchaser  of  the  stock 
of  goods,  the  proceeds  of  any  sales  to  be 
paid  to  the  mortgagee  or  used  in  purchase 
of  new  stock  to  come  under  the  mortgage  and 
to  replace  that  sold  at  the  inception  of  the 
transaction,  the  mortgage  is  valid  as  between 
the  lender  and  the  purchaser.  Kennev  v. 
Hurlburt  (Ore.)  1918E-737.  (Annotated) 

4.  Perfecting  lien  by  taking  possession. — 
Though  a  chattel  mortgage,  executed  in 
good  faith  by  the  purchaser  of  a  stock  of 
goods  to  the  person  who  lent  him  money  to 
enable  him  to  make  the  purchase  is  invalid 
as  against  the  creditors  of  the  purchaser,  it 
being  upon  a  fluctuating  stock  of  goods,  the 
lender's  mortgage  lien  is  perfected  when  he 
is  put  in  possession  of  the  merchandise  by 
the  purchaser,  the  mortgage  operating  as  an 
executory  agreement  which  subjected  after- 
acquired  goods  to  the  mortgagee's  lien  on  his 
taking  possession  before  the  rights  of  third 
persons  intervened.  Kenney  v.  Hurlburt 
(Ore.)    1918E-737. 

5.  Mere  existence  of  claims  of  creditors  of 
the  mortgagor,  without  attachment  or  seiz- 
ure upon  execution,  is  not  an  intervention 
of  the  rights  of  thu-d  persons,  preventing 
subjection  of  after-acquired  goods  to  the  lien 
of  a  chattel  mortgage  on  the  mortgagee's 
taking  possession  before  the  rights  of  third 
persons  intervened.  Kenney  v.  Hurlburt 
(Ore.)   1918E-737. 

6.  Where  money  was  lent  to  enable  the 
borrower  to  purchase  a  stock  of  goods,  and 
the  lender  took  a  chattel  mortgage  on  the 
fluctuating  stock,  authorizing  him,  in  case 
of  a  default,  to  take  possession  of  the  goods 
and  sell  them  at  private  sale  without  notice 
to  pay  the  borrower's  note,  the  fact  that  the 
lender,  when  he  took  possession  under  the 
stipulation  and  was  proceeding  in  good  faith 
to  sell  the  property,  was  not  unmindful  of 
the  claims  of  unsecured  creditors  and  offered 
and  proposed  to  get  all  he  could  out  of  the 
property  for  them,  does  not  lessen  nor  defeat 
his  security.  Kenney  v.  Hurlburt  (Ore.) 
1918E-737. 

7.  Accounts  assigned  as  collateral — Valua- 
tion and  disposal  of  proceeds. — Wliere  ac- 
counts payable  to  a  mortgagor  are  assigned 
to  the  mortgagee  as  collateral  security  for 
the  note  secured  by  the  mortgage,  the  ac- 
counts will  not  be  given  an  estimated  value 
in  reducing  the  balance  due  on  the  note,  but 
the  actual  amount  realized  on  the  accounts 
will  be  added  to  the  proceeds  of  the  sale  of 
the  mortgaged  property  for  the  satisfaction 
of  the  balance  due  on  the  note  and  the  costs 
of  foreclosure,  the  surplus  to  go  to  the  mort- 


gagor.    Kenney  v.   Hurlburt    (Ore.)    1918E- 
737. 

8.  The  mortgagee  in  such  a  case  must  ac- 
count to  the  receiver  of  the  mortgagor  for 
the  balance  realized  thereon  and  for  the  un- 
collected accounts.  Kenney  v.  Hurlburt 
(Ore.)  1918E-737. 


CHECK. 

Erroneous  notation  on  check  as  affecting 
validity  of  tender  of  payment,  see  Pay- 
MEXT,  1,  2. 


CHILD. 

See  Infants  ;  Parent  Ajsp,  Chiu). 

CHILD  LABOR. 

Validity  of  act  prohibiting  transportation  in 
interstate  commerce  of  products  of  child 
labor,  see  Intebstate  Commerce,  10-12. 

CHILDREN. 

As  including  grandchildren,  see  Words  and 

Phrases,  2. 
Injurv  from  electric  wires,  see  Electricity, 

6-8. 

CHIROPRACTIC. 

♦Validity  of  statute  regulating  practice  of  os- 
teopathy as  affected  by  inclusion  of  chi- 
ropractic, see  Physicians  and  Sur- 
geons, 2,  3. 
Violation  of  constitutional  provision  as  to 
title  and  subject  matter  of  statute  by 
including  chiropractic  in  act  regulating 
practice  of  osteopathy,  see  Statutes,  3. 

CIRCUMSTANTIAL  EVIDENCE. 

In  prosecution  for  homicide,  see  Homicide,  5. 
To  establish  fraud,  see  Frauds,  14. 

CIVIL    RIGHTS. 

1.  Construction  of  statute.— Section  40  of 
the  New  York  Civil  Rights  Law  (McKinney's 
Consol.  Laws,  Book  8,  p.  37 1  as  amended  by 
Laws  1913,  e.  265,  as  to  denial  of  accommoda- 
tion in  public  places  on  account  of  race,  and 
section  41  (McKinney's  Consol.  Laws,  Book 
8,  p.  42)  as  so  amended,  imposing  a  penalty, 
being  both  penal  and  criminal,  must  lie 
strictly  construed,  and  will  not  be  enforced 
bevond  the  clear  legislative  intent.  Gibbs  v. 
Arras  Bros.   (N.  Y.)   1918D-1141. 

2.  Liquor  saloon  as  "place  of  public  ac- 
commodation."— Said  seetion  40,  as  amended, 
providing  that  no  proprietor  of  "any  place 
of  public  accommodation,   resort   or   amuse- 


CLASS  LEGISLATIOX— COMPULSORY  SEK\' ICE. 


,59 


nient"  shall  deny  accommodation  to  any  per- 
son on  account  of  race,  creed,  or  color,  and 
defining  such  place  to  include  any  inn,  tav- 
ern, or  hotel  which  is  conducted  for  the  en- 
tertainment of  guests,  or  for  the  aceommoda- 
tion  of  those  seeking  health,  recreation,  or 
rest,  any  restaurant,  eating  house,  barber 
shop,  theater  and  music  hall,  does  not  include 
a  liquor  saloon.  Gibbs  v.  Arras  Bros.  (N. 
Y.)  1918D-1141.  (Annotated) 


CLASS   LEGISLATION. 

See  Constitutional  Law. 


CLOSING  HOURS. 

Validity  of  act  regulating  closing  hours  of 
mercantile  establishments,  see  Constitu- 
tional Law.  6-9. 


CLOUD   ON  TITLE. 

Injunction  against  execution  sale  to  prevent 
cloud  on  title,  see  Injunctions,  5,  7,  9. 


COMBINATIONS. 

See  Labob  Combinations;  Monopolies. 

COMMERCE. 

See  Intebstate  Commebce. 


COMMISSION  FORM  OF  GOVERN- 
MENT. 

Validity  of   statute   providing   for   recall   of 
commissioner,   see   Municipal  Cobpoba- 

TIONS,   7. 


COMMISSION  MERCHANTS. 

See   Factobs. 

COMMON  CARRIER. 

See  Cabbiebs;   Cabbiers  of  Goods;   Cabbi- 
EBs  OF  Live  Stock;   Cabbiebs  of  Pas- 

SENGEBS. 


COAL. 

Power  of  city  to  maintain  coal  yard,  see  Mu- 
nicipal COBPOBATIONS,  12. 


COHABITATION. 

Presumption  of  meretricious  relationship,  see 
Evidence,  37. 


COLD  STORAGE. 

Negligence  in  care  of  eggs,  see  Food.  1-4. 
Power    of   city   to   operate,    see   Municipal 
Cobpobations,  11. 


COLLATERAL  ATTACK. 

On    award    of   arbitrators,    see   Abbitbation 

and  Award.  .5. 
On  judgment,  see  Judgments,  18. 


COLLATERAL  SECURITY. 

See  Pledge. 

COLORED  PERSONS. 

Reference    by    prosecuting    attorney    to    race 

of  accused,  see  Abqument  and  Conduct 

OP  Counsel,  2. 
Statute  penalizing  denial  of  accomodation  in 

public    places    on    account    of    race,    see 

Civil  Rights,  1,  2. 


COMMON-LAW  MARRIAGE. 

See  Mabbiage,  2-5,  8. 

COMMUNITY  PROPERTY. 

See  Husband  and  Wife,  18-20. 

Levy  on  community  property,  see  Attach- 
ment. 1,  2.        ' 

Lien  of  judgmeiit  on  community  property,  see 
Judgments,  6. 

COMPLAINT. 

See  Pleading,  2-4. 

COMPROMISE   AND   SETTLEMENT. 

Admission  in  connection  with  offer  of  com- 
promise, see  AdMissiONS  and  Declaba- 
TIONS,  14,  15. 

Settlement  of  cause  of  action  for  conversion, 
see  C0N%-EBSI0N,  3. 

1.  Binding  effect. — ^Where,  as  in  this  case, 
at  least  one  of  the  items  in  the  account  sued 
for  is  covered  by  a  contract  of  compromise 
between  the  parties,  an  instruction  to  the 
jury  that  such  compromise  is  binding  upon 
the  parties  thereto  unless  impeached  for 
fraud,  or  because  something  has  been  in- 
advertently omitted  therefrom,  is  properly 
given.  Parkersburg,  etc.  Sand  Co.  v.  Smith, 
(W.  Va.)  1918E-449. 

COMPULSORY    SERVICE. 

See  Army  and  Xavy. 


60 


ANK  CAS.  DIGEST  (1918a-1918E). 


CONDITIONAL  SALES. 

Liability  of  purchaser  under  conditional  sale 
contract  for  goods  destroyed,  see  Sales, 
8. 


CONDONATION. 

As  defense  to  proceeding  for  annulment  of 
marriage,  see  Mabbiage,  13,  14. 


CONFIDENCE  GAME. 

See  False  Pbetenses,  1-4. 

CONFIDENTIAL    COMMUNICATIONS. 

See  Libel  and  Slandee;  Witnesses. 

CONFLICT   OF   LAWS. 


other  evidence  of  indebtedness  given  on  ac-- 
count  of  past  premium  payments,  the  bal- 
ance shall  be  taken  as  a  net  single  premium 
for  temporary  insurance,  does  not  apply  to 
a  loan  contract  entered  into  between  a 
policyholder,  a  resident  of  Missouri,  and  a 
New  York  insurer  authorized  to  do  business 
in  Missouri,  and  Which  in  that  state  wrote 
the  policy  involved,  where  it  was  expressly 
agreed  between  the  parties  in  the  loan  agree- 
ment, the  application  for  which  was  trans- 
mitted to  the  insurer's  New  York  office, 
that  the  laws  of  New  York,  under  which 
the  hypothecation  of  the  reserve  was  valid, 
should  govern.  New  York  Life  Ins.  Co.  v. 
Dodge   (U.  S.)   1918E-593.  (Annotated) 

5.  Rules  of  pleading  and  evidence. — In  the 
absence  of  Congressional  enactment  and  sub- 
ject to  section  3999,  St.  1893  (section  4772, 
Rev.  Laws  1910)  the  general  rules  of  pleading 
and  evidence  obtain  "in  ascertaining  in  one 
state  what  faith  and  credit  is  given  a  judg- 
ment in  the  courts  of  another  state  in  which 
such  judgment  was  rendered.  St.  Louis,  etc. 
E.  Co.  V.  Crews   (Okla.)   1918C-823. 


Applicability  of  workmen's  compensation  act 
to  employer  who  removed  plant  from 
state  before  passage  of  act,  see  Masxeb 

AND  SeBVANT,  C. 

Law  governing  payment  of  benefits  by  for- 
eign beneficial  associations,  see  Benefi- 
cial Associations,  20. 

1.  Contract  to  arbitrate. — ^Under  the  laws 
of  New  York,  a  provision  in  a  foreign  con- 
tract that  disputes  between  the  charterer 
and  the  owner  of  a  vessel  should  be  settled 
by  arbitration  is  unenforceable,  because  it 
would  be  held  to  affect  only  the  remedy  and 
to  be  contrary  to  public  policy,  as  ousting 
the  courts  of  jurisdiction.  Aktieselsk  Abet 
Korn-og,  etc.  v.  Rederiaktiebolaget,  etc. 
(U.   S.)    1918E-491.  (Annotated) 

2.  Insurance  Contract. — ^Where  a  foreign 
insurance  company  licensed  to  do  business  in 
the  state  of  Missouri,  issues  a  life  policy 
to  a  resident  of  that  state,  the  contract  is 
a  Missouri  one.  New  York.  Life  Ins.  Co.  v. 
Dodge   (U.  S.)   1918E-593.  (Annotated) 

3.  A  clause  in  a  life  policy,  issued  by  a 
foreign  insurer  licensed  to  do  business  in 
Missouri,  which  provides  that  loans  can  be 
obtained  by  the  insured  on  the  sole  security 
of  the  policy,  imposes  no  obligation  on  the 
insurer  to  make  such  loans,  if  the  Missouri 
statute  applied  ahd  prohibited  hypothecation 
of  the  reserve  as  securitv.  New  York  Life 
Ins.  Co.  V.  Dodge    (U.   S.)    1918E-593. 

(Annotated) 

4.  As  a  state  cannot,  under  Const.  U.  S. 
Amend.  14,  forbid  a  citizen  from  making  con- 
tracts outside  its  limits  Avhile  he  remains 
within.  Rev.  St.  Mo.  1899,  §  7897,  providing 
that  no  policies  of  life  insurance  issued  by 
any  company  authorized  to  do  business  in 
the  state  shall  after  payment  of  three  annual 
premiums  be  forfeited  by  reason  of  nonpay- 
ment, but  that  the  net  value  of  the  policy 
shall  be  computed,  and,  after  deducting  from 
three-fourths    of    such    value    any    notes    or 


CONFUSION  OF  GOODS. 

1.  Rights  of  lien  claimant. — Rem.  &  Bal. 
Code,  §  1188,  provides  that,  during  the  year 
in  which  farm  labor  is  performed,  the  laborer 
shall  have  a  lien  upon  all  crops  raised  on 
the  land,  superior  to  all  other  liens,  includ- 
ing a  prior  chattel  mortgage.  Section  1190 
requires  the  claim  of  lien  to  be  filed  with  the 
county  auditor  within  forty  days  after  the 
close  of  the  work;  section  1190a  gives  all 
lienholders  for  farm  labor  the  rights  secured 
to  lienors  on  logs  as  specified  in  section  1181, 
providing  that  any  person  eloinging  or  ren- 
dering it  difficult,  uncertain,  or  impossible  to 
identify  any  sawlogs  upon  which  there  is  a 
lien,  without  the  express  consent  of  the  lien- 
holder,  shall  be  liable  for  damages  to  the 
amount  secured  by  the  lien,  and  that  on  a 
showing  to  the  court  in  the  action  to  enforce 
the  lien  the'coiu't  shall  enter  a  personal  judg- 
ment against  such  person  if  a  party  to  the 
action,  and  that  all  the  damages  may  be 
recovered  by  a  civil  action  against  such  per- 
son. Plaintiff  performed  farm  labor  in  1912- 
1913,  and  in  1913  a  lien  therefor  was  adju- 
dicated in  his  favor,  and  the  gi-ower  had  it 
put  in  a  public  grain  warehouse  and  com- 
mingled with  other  wheat  and  negotiable 
warehouse  receipts  issued  to  the  defendant, 
mortgagee,  who  sold  the  wheat  and  deliv- 
ered the  receipts  to  the  purchaser.  It  is  held 
that  as  its  identification  as  the  wheat  from 
the  land  on  which  plaintiff  had  labored  was 
made  difficult,  imcertain,  or  impossible,  he 
might  recover  damages  of  the  defendant. 
Hubbard  v.  Johnson    (Wash.)    1918C-84. 


CONGESTION  OF  TRAFFIC. 

As    affecting    duty    of    carrier    to    transport 
goods,  see  Carriers  of  Goods,  2. 


COXXECTIXG  CARRIERS— COXSTITUTIOXAL  LAW. 


Gl 


CONNECTING   CARRIERS. 

See  Cabbiebs  of  Goods,  11. 

CONSCRIPTION. 

Validity  and  construction  of  conscription 
act,  see  Abmy  and  Navy,  1-7. 

CONSECUTIVE   SERVICE. 

Statute  limiting,  see  Public  Officebs,  2-5. 

CONSIDERATION. 

See  Contracts,  2-5. 
For  contract  of  pledge,  see  Pledge,  3. 
For  contract  of  suretyship,  see  Subetyship, 
1-3. 

CONSORTIUM. 

Cleaning  of  term,  see  \Vobds  axd  Pheases,  3. 

Loss  of  consortium  as  bodily  injury  allowing 
husband  to  subject  insurance  money  to 
satisfaction  of  judgment  for  recovery  of 
damages  for  injury  to  wife,  see  Insub- 
ance,  41 

Right  of  wife  to  sue  for  loss  of  consortium, 
see  Husband  and  Wife,  21. 

CONSPIRACY. 

Sufficiency  of  evidence  of  fraud  in  voting 
contest  to  warrant  instruction  of  con- 
spiracy, see  Fbaud,  15. 

1  Criminsl  conspiracy — Proof, — A  conspir- 
acy may  be  infeirc<l  from  circumstances. 
State  y.'Hyde  (Ore.)  l!»18E-tJ88. 

2.  Civil  "liability — Burden  of  proof. — In  an 
action  for  conspiracy  to  injure  plaintiff's  busi- 
ness, where  plaintiff,  by  amendment,  charged 
a  defendant  with  a  separate  and  distinct 
tort  done  by  him  as  part  of  the  conspiiacy, 
the  burden  of  proof- was  on  plaintiff  to  prove 
such  separate  tort.  McClintock  v.  McClure 
(Ky.)    1918E-96. 

CONSTITUTIONAL  LAW. 

1.  Nature    and    Operation    of    Constitutions, 

62. 

2.  Police  Power: 

a.  In  general.    62. 

b.  Regulation  of  Imsiness,    62. 

3.  Due  Process  of  Law,  62. 

4.  Privileges  and  Immunities,  62. 

5.  Personal  and  Religious  Liberty,  63. 

6.  General  and  Special  Laws,  6.3. 

7.  Delegation  of  Legislative  Powers,  63. 

8.  Self-executing   Provisions,  63. 


9.  General    Principles   Governing   Determina- 

tion   as    to    Constitutionality    of 
Statutes: 

a.  In  General,    63. 

b.  Who     May     Raise     Constitutional 
Question,  64. 

c  Construction   in   Favor   of  Validity, 
64. 

d.  Presumption  in  Favor  of  Validity, 
64. 

e.  Wisdom  of  Statute,  64. 

10.  Construction    of   Constitutions,  64. 

Arbitrary  distinction  in  statute  limiting 
of  labor  for  females,  see  Labob  Laws, 
6-8. 

Assessment  for  improvements  by  front-foot 
rule  as  violating  fourteenth  amendment, 
see  Taxation,  49. 

Charter  provision  entitling  only  resident 
owners  to  sign  remonstrance  against  pub- 
lic improvement  as  conflicting  with  four- 
teenth amendment,  see  Taxation,  47. 

Classitication  bv  license  laws,  see  Licenses, 
3. 

Constitutional  requirements  as  to  title  and 
subject  of  statutes,  see  Statutes,  1-3. 

Due  process  of  law  in  proceedings  for  equal- 
ization of  taxes,  see  Taxation,  18. 

Effect  of  partial  invalidity  of  statutes,  see 
Statutes,   8-10. 

Equality  in  taxation,  see  Taxation,  1. 

Legislative  control  of  voters,  see  Elections, 
17.  18. 

iPermitting  graduating  exercises  to  be  held 
in  church  as  violating  constitutional  in- 
hibition against  sectarian  instruction  in 
public  schools,  see  Schools,  5,  6. 

Power  of  municipality  to  invoke  protection 
of  constitution,  see  ^Iunicipal  Cobpoea- 

TION.S,   6. 

Power  of  state  to  regulate  or  prohibit  use 
of  streets  for  business  for  private  gain, 
see  Stbeets  and  Highways,  3-6. 

Requirements  of  clause  as  to  nature  and 
cause  of  accusation  against  accused,  see 
Indictments  and  Infobmations,  1,  3-6. 

Violation  of  constitutional  right  of  trial  by 
jury  by  summary  judgment  on  appeal 
bond,  see  Appeal  and  Erboe,  116. 

Validity  of  Statutes  Relating  to  Particular 
Subjects. — 

Appropriation  by  state  for  assisting  United 
States  in  carrying  on  war,  see  Wab,  1-4. 

Authorizing  city  or  town  to  enter  business  of 
selling  fuel  to  inhabitants,  see  Munici- 
pal   COBPOBATIONS,    12. 

County  fence  law,  see  Fences,  1. 

Creating  city  court  with  jurisdiction  concur- 
rent with  justice  of  the  peace,  see  Coubts, 
1. 

Creating  state  insurance  board,  see  Insub- 
ance,  8,  14. 

Election  laws,  see  Elections,  1-3,  5-9. 

Establishing  minimum  wage  for  women,  see 
Labob  Laws,  4,  5. 

Federal  reserve  bank  act,  see  Banks  and 
Banking,  1,  2. 

Giving  option  to  city  as  to  form  of  govern- 
ment, see  Municipal  Cobpobations,  1-5. 


62 


ANN".  CAS.  DIGEST  (1918C-1918E). 


Limiting   consecutive    service    of    public   oSi- 

''       cers,  see  Public  Officers,  2-5. 

Limiting  fee  of  attorney  for  collection  of 
claim  against  government,  see  Attob- 
NEYS,  6-8. 

Pension  act,  see  Pensions,  1,  2. 

Prescribing  form  of  indictment,  see  Indict- 
ments  AND    I.NFOBMATIONS,   1-6. 

Prescribing  standard  of  weights  and  meas- 
ures, see  Weights  and  Measures,  1, 

Prohibiting  assignment  of  claim  to  nonresi- 
dent, see  Assignments,  1. 

Prohibiting  issuance  of  trading  stamps,  see 
Trading  Stamps,  1-4. 

Prohibition  of  pool  halls  by  local  option,  see 
Local  Option,  1,  2. 

Providing  for  confiscation  of  false  weighing 
or  measuring  device,  see  Weights  and 
Measures,  2. 

Providing  for  recall  of  commissioner  bf  city 
having  commission  form  of  government, 
see  Municipal  Corporations,  7. 

Regulating  practice  of  osteopathy,  see  Phy- 
sicians AND  Surgeons,  1-3. 

Requiring  foundry  to  provide  toilet  facilities 
for  workmen,  see  Labor  Laws,  3. 

Requiring  junk  dealers  to  take  out  license, 
see  Junk,  Dealers  and  Junk  Shops,  1, 
2. 

Sunday  ordinances,  see  Sundays  and  Holi- 
days, 1-3. 

Torrens  act,  see  Recording  Acts,  2-5 

1.  Nature  and  Operation  of  Constitution. 

1.  Statutes  may  be  nullified,  in  so  for  as  fu- 
ture operation  is  concerned,  by  the  constitu- 
tion as  well  as  by  statute,  as  the  constitution 
is  the  direct,  positive,  and  'limiting  voice  of 
the  people,  and  may  establish  a  policy,  fix  a 
limit  to  legislation  on  a  given  subject,  or 
prohibit  specified  acts  as  being  performed  by 
public  servants.  Wren  v.  Dixon  (Nev.) 
1918D-1064. 

2.  Effect  on  rights  previously  vested. — 
Where  the  rights  of  a  city  under  a  claim  of 
lien  had  become  fixed  at  the  time  the  provi- 
sions of  the  constitution  became  eflfective  and 
in  force,  its  rights  wouJd  not  be  affected  be- 
cause the  law,  under  which  its  right  to  the 
lien  accrued,  might  conflict  with  the  constitu- 
tion, as  such  rights  were  preserved  by  section 
4,  art.  22,  of  the  constitution.  Roswell  v. 
■Bateman  (N.  M.)  1918D-426. 

2.  Police  Power. 

a.  In  General. 

8.  It  is  fundamentally  true  that  whatever 
may  be  enjoined  by  a  court  of  equity  may 
by  legislation  be  declared  malum  prohibitum. 
Hall  V.  Johnson    (Ore.)    1918E-49. 

4.  It  is  not  the  function  of  the  Federal  Su- 
preme Court,  under  the  authority  of  the 
fourteenth  amendment,  to  supervise  state 
legislation  in  the  exercise  of  the  police  power 
beyond  protecting  against  exertions  of  such 
authority  in  the  enactment  and  enforcement 
of  laws  of  an  arbitrary  character,  having  no 
reasonable  relation  to  the  execution  of  lawful 


purposes.     Jones  v.  Portland  (U.  S.)  1918E- 
660. 

5.  Congress  has  the  power  to  regulate  and 
restrain  the  conduct  and  contracts  of  all  per- 
sons for  the  common  good,  the  possession 
and  enjoyment  of  liberty  and  property  being 
subject  to  such  reasonable  conditions  as  may 
•be  essential  to  the  safety,  health,  peace,  good 
order,  and  morals  of  the  community.  Moyers 
V.  Memphis  (Tenn.)  1918G-854, 

b.  Regulation  of  Business. 

6.  Closing  hours.— Laws  1915,  c.  23,  entitled 
"An  act  to  regulate  the  workinjr  hours  of  all 
employees  of  mercantile  establishments," 
providing  by  section  1  that  all  mercantile 
and  commercial  houses  in  cities  of  10,000  pop- 
ulation and  over  should  close  at  6  P.  m.,  on 
every  business  day  in  the  year  except  for  the 
six  business  days  preceding  December  25th, 
by  section  2,  exempting  all  houses  dealing 
mainly  in  provisions  of  a  perishable  nature 
which  are  regarded  as  public  necessities,  by 
section  3,  exempting  drug  stores  which  are 
regarded  as  public  necessities,  violates  the 
constitutional  provision  that  the  subject  of 
an  act  shall  be  clearly  expressed  in  its  title, 
since  instead  of  regulating  the  working  hours 
of  employees,  the  body  of  the  act  fixed  a 
closing  hour  for  mercantile  and  commercial 
houses,  extending  both  to  those  having  em- 
ployees and  those  having  none.  Saville  v. 
Corless    (Utah)    1918D-196.  (Annotated) 

7.  Such  act  is  invalid  as  an  exercise  of  the 
police  power,  since  the  men's  furnishing  and 
jewelry  business  conducted  by  one  of  the  peti- 
tioners without  help,  and  the  retail  cigar 
business  of  the  other  petitioner,  does  not 
aflFect  the  health  or  safety  of  those  engaged 
in  it,  and  since  the  act  fixes  a  closing  hour 
and  is  not  directed  to  enterprises  affecting 
the  health,  morals,  safety,  or  general  welfare. 
Saville  v.  Corless   (Utah)  1918D-198. 

(Annotated) 

8.  Such  act  is  objectionable  j.s  being  special 
legislation,  since  it  only  applies  to  cities  of 
10,000  or  more,  and  since  it  exempts  drug 
stores  and  commercial  houses  dealing  mainly 
in  food  stuffs  and  provisions  of  a  perishable 
nature.    Saville  v.  Corless  (Utah)  1918D-198. 

(Annotated) 

B.  Such  act  violates  the  constitutional  right 

to  enjoy,  acquire,  and  possess  property,  the 

most  valuable  of  which  is  that  of  the  right 

to  sell.    Saville  v.  Corless  (Utah)  1918D-198. 

(Annotated) 

3.  Due  Process  of  Law. 

10.  The  due  process  of  law  clauses  of  the 
Federal  Constitution,  while  designed  to  pre- 
serve life,  liberty,  and  property  inviolate 
against  arbitrary  power,  do  not  interfere  with 
the  police  power  of  the  different  states. 
Moyers  v.  Memphis   (Tenn.)   1918C-854. 

4.  Privileges  and  Immunities. 

11.  Attaching  conditions  to  privileges 
granted. — Congress  haiJ  the  power  to  deter- 
mine the  conditions  upon  which  the  govern- 


COXSTITUTIOXAL  LAW. 


63i 


ment  ^Yill  consent  to  be  sued,  or  upon  which 
it  will  giaut  pensions  or  other  bounties,  or 
prescribe  conditions  upon  which  attorneys 
will  be  allowed  to  represent  claimants  or 
litigants  before  any  of  the  courts  of  the  gov- 
ernment, within  certain  reasonable  limita- 
tions, if  done  by  general  laws  applicable  to 
all  alike,  and  in  advance  of  the  services  ren- 
dered in  such  courts.  Moyers  v.  Memphis 
(Tenn.)    1918C-854. 

12.  Preservation  of  rights  of  accused. — It 
is  the  duty  of  the  supreme  court  to  give 
effect  to  all  the  constitutional  and  other 
rights  of  a  defendant  in  a  criminal  case,  and 
also  to  sustain  all  legislative  enactments,  un- 
less it  is  satisfied  bej'ond-  a  reasonable  doubt 
that  they  violate  the  fundamental  law.  Peo- 
ple V.  Brady  (111.)   1918C-540. 

5.  Personal  and  Religious  Liberty. 

13.  Right  to  f«llow  occupation. — The  right 
of  a  citizert  to  pursue  any  calling,  business, 
or  profession  he  may  choose  is  a  property 
right  to  be  guarded  by  equity  as  zealously  as 
any  other  form  of  property.  New  Method 
Laundry  Co.  v.  MacCann   (Cal.)    1918C-1022. 

14.  Liberty  of  contract. — The  liberty  of 
contract  is  one  of  the  inalienable  rights  of  a 
citizen,  embracing,  as  it  does,  the  right  to 
enter  a  lawful  calling  and  to  acquire  and  dis- 
pose of  property,  so  that  a  general  prohibi- 
tion against  entering  into  contracts  with  re- 
spect to  property  is  unconstitutional  and 
void.    Moyers  v.  Memphis  (Tenn.)  1918C-854. 

15.  Liberty  of  contract  and  right  of  prop- 
erty are  not  absolute  and  universal,  in  spite 
of  the  fifth  and  fourteenth  amendments  to 
the  United  States  Constitution,  and  it  is 
■within  the  power  of  the  government  to  re- 
strain some  individuals  from  all  contracts, 
as  Avell  as  all  individuals  from  some  con- 
tracts. Movers  v.  Memphis  (Tenn.)  1918C- 
854. 

16.  Right  to  patronize  tradesman. — The 
constitutional  guaranties  of  liberty  include 
the  privilege  of  every  citizen  to  freely  select 
those  tradesmen  whom  he  may  desire  to 
patronize,  and  equity  cannot  invade  or  take 
away  this  right,  either  directly  or  indirectly, 
without  due  process  of  law.  New  Method 
Laundry  Co.  v.  MacCann   (Cal.)   1918C-1022. 

6.  General  and  Special  Laws. 

17.  Exceptions. — Exceptions  founded  on 
reason  do  not  render  a  general  statute  or 
ordinance  unconstitutional  as  special  legis- 
lation. State  V.  Scullin-Gallagher  Iron,  etc. 
Co.  (Mo.)  1918E-620. 

7.  Delegation  of  Legislative  Power. 

18.  Statute  effective  on  ratification  by 
voters.^ — The  submission  by  the  legislature 
of  a  special  and  local  statute  proposing  a 
new  form  of  government  for  an  existing 
municipal  corporation  to  a  vote  of  the  elec- 
tors of  the  municipality  for  adoption  or 
rejection  is  not  a  delegation  of  the  authority 
or  functions  of  the  legislature.  Gretna  v. 
Bailey    (La.)    1918E-566.  (Annotated) 


8.  Self-executing   Provisions. 

19.  In  determining  when  a  constitutional 
provision  is  self-executing,  there  is  a  dis- 
tinction between  a  declarative  limitation  of 
legislative  power  on  a  given  subject,  within 
which  legislation  may  or  should  be  enacted, 
and  positive  constitutional  inhibition  which 
no  legislative  act  can  relieve  or  modify;  the- 
former  might  require  future  legislation;  the 
latter  must,  from  its  nature,  be  self-execut- 
ing.    Wren  t.  Dixon   (Nev.)   1918D-1064. 

(Annotated) 

20.  Prohibitory  provisions  in  a  constitu- 
tion are  usually  self-executing  to  the  ex- 
tent that  anything  done  in  violation  of 
them  is  void,  and  no  legislation  is  required- 
to  execute  such  provision;  but  they  are 
not  self-executing  when  they  merely  indicate 
principles  without  laying  down  rules  by. 
which  they  may  be  given  the  force  of  law. 
Wren    v.    Dixon    (Nev.)    1918D-1U64. 

(Annotated) 

21.  Taxation  of  patented  mines. — Const, 
art.  10,  §  1,  as  amended  in  November,  1902 
(see  St.  1901,  p.  136),  declared  that  the 
legislature  should  provide  a  uniform  and 
equal  rate  of  assessment  and  taxation  to  se- 
cure a  just  valuation  of  real  and  personal 
property,  mining  claims,  etc.,  and  that  the 
acreage  of  patented  claims  should  be  assessed 
at  the  valuation  of  $10  per  acre.  St.  1905, 
c.  58,  provided  for  the  assessment  of  patented 
mines  at  such  valuation.  Article  10,  §  1,  as 
amended  in  1906  (see  St.  1907,  p.  501),  pro- 
vided that  patented  mining  claims  should  be 
assessed  at  not  less  than  $500,  except  when 
$100  in  labor  has  been  actually  performed  on 
such  mine  during  the  year,  in  addition  to  the 
tax  on  the  net  proceeds,  and  no  legislation 
was  passed  pursuant  to  such  provision  until 
1913.  It  is  held  that  .  the  constitutional 
amendment  of  1906  was  self-executing  at 
least  to  the  provision  for  taxation  of  patent- 
ed mines,  and  absolutely  nullified  the  statute 
of  1905,  so  that  an  assessment  thereunder 
in  1909  was  invalid.  Wren  v.  Dixon  (Nev.) 
1918D-1064.  (Annotated) 

9.  General   Principles   Governing   Determina- 
tion as  to  Constitutionality  of  Statues. 

a.  In  General. 

22.  Natural  effect. — A  statute  must  be 
judged  bv  its  natural  and  reasonable  effect. 
Hammer*  V.    Dagenhart    (U.    S.)    1918E-724. 

23.  Necessity  of  conflict  with  constitution. 
— A  statute  cannot  be  judicially  declared  be- 
yond the  power  of  the  legislature  to  enact, 
unless  some  provision  of  the  constitution 
which  is  in  conflict  with  it  can  be  specifically 
pointed  to.  Cleveland  v.  Watertown  (N.  Y.) 
1918E-574. 

24.  Federal  review  of  state  legislation — 
While  the  ultimate  authority  to  determine 
the  validity  of  state  legislation  under  the 
fourteentli  amendment  rests  in  the  Federal 
Supreme  Court,  local  conditions  are  of  such 
varying  character  that  what  is  or  is  not  a 
public  use  in  a  particular  state,  for  which 
money  may  be  raised  by  taxation,  is  a  matter 
respecting   which   local    authorities  have   pe- 


64: 


ANK  CAS.   DIGEST  (1918C-1918E). 


culiar  facilities  for  securing  accurate  in- 
formation, and  a  judgment  of  tlie  liiglieat 
court  of  the  state  as  to  what  should  be 
deemed  a  public  use  is  entitled  to  the  high- 
est respect.  Jones  v.  Portland  (U.  S.) 
1918E-660. 

25.  In  determining  the  constitutionality  of 
state  statutes  enacted  at  different  dates  un- 
<ier  which  license  taxes  were  assessed,  the 
Federal  Supreme  Court  should  follow  the 
decisions  of  the  state  court  and  construe 
the  statutes  as  being  part  of  a  single  scheme. 
International  Paper  Co.  v.  Commonwealth  of 
Massachusetts    (U.  S.)    1918C-617. 

b.  Who  May  Raise   Constitutional   Question. 

25i.  Persons  entitled  to  attack  statute. — 
This  court  will  not  pass  upon  the  constitu- 
tionality of  an  act  of  the  legislature  nor  of 
any  of  its  provisions  until  there  is  presented 
a  proper  case  in  which  it  is  made  to  appear 
that  the  person  complaining  is  entitled  to  the 
benefits  of  the  act  or  about  to  be  subjected 
to  some  of  its  burdens  or  penalties.  Insur- 
ance Co.  of  North  America  v.  Welch  (Okla.) 
1918E-471. 

26.  Ministerial  officer. — It  is  the  impera- 
tive duty  of  a  ministerial  county  officer  to 
obey  the  order  of  a  tribunal  vested  with 
authority  to  direct  his  action,  and  lie  cannot 
question  or.  decide  on  its  validity  or  attack 
the  validity  of  the  statute  on  which  it  pro- 
ceeds.   People  V.  Pitcher  (Colo.)  1918D-1185. 

(Annotated) 

c.  Construction  in  Favor  of  Validity. 

27.  It  is  settled  law  that  the  charter  of  a 
municipality  or  a  state  statute  will  not  be 
held  to  violate  the  constitution  if  any  other 
rational  interpretation  can  be  given  it,  this 
being  particularly  true  with  respect  to  the 
states  where  the  legislature  has  plenary 
power.  Pitman  v.  Drabelle  (Mo.)  1918D- 
601. 

d.  Presumption  in  Favor  of  Validity. 

28.  A  statute  is  presumptively  valid,  and 
its  unconstitutionality  must  appear  beyond 
reasonable  doubt  before  it  will  be  set  aside. 
State  V.  Scullin-Gallagher  Iron,  etc.  Co.  (Mo.) 
1918E-620. 

29.  If  there  is  a  doubt  as  to  the  constitu- 
tionality of  a  law,  it  must  be  solved  in  favor 
of  its  validity;  and  it  is  only  where  a  law 
is  manifestly  in  violation  of  some  provision 
of  the  constitution  that  a  court  may  declare 
it  void.     Ex  parte  Mode  (Tex.)  1918E-845. 

30.  No  act  of  the  legislature  will  be  pro- 
nounced unlawful  unless  its  nullity  is  made 
manifest  beyond  a  reasonable  doubt;  doubt 
alone  being  insufficient  to  overturn  an  act  of 
the  legislature.  State  v.  State  (Mont.) 
1918D-1101. 

e.  Wisdom   of   Statute. 

31.  Courts  have  no  right  to  strike  down 
laws  enacted  by  the  legislature,  no  matter 
how  unwise  they  may  deem  them,  unless 
they   can   find   an   inhibition    in   the   consti- 


tution.    Ex  parte   Mode    (Tex.)    1918E-845. 

32.  When  the  legislature  acts  within  its 
constitutional  authority,  in  the  exercise  of 
the  police  power  of  the  state,  the  expedieiuy 
of  its  action  is  not  a  question  for  the  courts. 
Hadfield  v.  Lundin   (Wash.)   1918C-942. 

10.  Construction  of  Constitutions. 

33.  The  object  of  construction,  as  applied 
to  a  written  constitution,  is  to  give  effect  tc» 
the  intent  of  the  people  in  adopting  it,  which 
intent  is  to  be  found  in  the  instrument  it- 
self, as  it  is  to  be  presumed  that  language 
has  been  employed  with  sufficient  precision 
to  convey  it,  and,  unless  it  appears  that  the 
presumption  does  not  hold  in  the  particular 
case,  nothing  will  remain  but  to  enforce  it. 
Wren  v.  Dixon  (Nev.)  1918D-1064. 

34.  Extraneous  aids. — In  seeking  the  in- 
tent of  the  people  in  adopting  a  constitution- 
al limitation,  if  concealed  in  ambiguous 
phraseology,  courts  may  properly  resort  to 
other  relevant  provisions  of  the  instrument, 
the  history  of  the  times,  laws  then  existing, 
the  mischiefs  existing,  and  the  appropriate 
remedies.     Kelso  v.   Cook    (Ind.)    1918E-68. 

35.  In  construing  ambiguous  constitutional 
provisions,  the  legislative  interpretation, 
when  acquiesced  in  for  a  long  period  of  time, 
is  entitled  to  great  weiglit  with  the  court 
Kelso  V.  Cook  (Ind.)  1918E-68. 


CONSTRUCTION. 

Of  certificate  of  fraternal  benefit  society,  see 

Beneficial  Associations,  3. 
Of  constitution,  see  Coxstitutioxal  Law,  7, 

33-35. 
Of  contracts  generally,  see  Coxteacts,  7-11 
Of  contracts  with  United  States,  see  Uxited 

States.  1-6. 
Of  deeds,  see  Deeds,  4-7. 
Of  insurance  policy,  see  Fire  Insurance,  4- 

14;  Ixsurance,  16-20;  Life  Insubaxce 

7-9. 
Of   option    timber   contract,    see   Trees   and 

Timber,  1,  2. 
Of  statutes,  see  Statutes,  11-20. 
Of  verdict,   see  Verdicts,  4. 
Of  wills,  see  Wills,  26-37. 


CONSTRUCTION  WORK. 

See  Contracts,  24-36. 

CONSTRUCTIVE    TRUST, 

See  Trusts,  1-13. 

CONTEMPT. 

Marriage  in  violation  of  decree  of  divorce  as 
contempt,  see  Marriage,  2. 


CO:s'TIGUOUS— COXTRACTS. 

CONTIGUOUS. 


65 


Adverse  possession  of  one  of  several  tracts 
contiguous  to  each  other,  see  Adverse 
Possession,  2. 


CONTINUANCE. 

See  Tbial,  1. 

Suspension  of  business  in  justice's  court  as 
affecting  validity  of  default  judgment, 
see  Justices  of  the  Peace,  2. 


CONTINUING  OFFENSE. 

Meaning  of  term,  see  Words  and  Phbases,  4. 

CONTRACTS. 

1.  Elements,  65. 

2.  Construction  and  Interpretation,  66. 

3.  VaUdity: 

a.  In  General,  66. 

b.  Contract    Contemplating    Practice    of 

Law  by  Corporation,    66. 

c  Contracts  for  the  Suppression  of  Bid- 
ding, 66. 

d.  Relief  of  Parties,  66. 

4.  Performance  or  Breach,  66. 

5.  Building    or   Working    Contracts: 

a.  Construction  of  Provisions,  67. 

b.  Performance  or  Breach,   67. 

c.  Bond  of  Contractor,  67. 

d.  Actions,  68. 

See  A6E>-or;  Fire  Insurance;  Fraud 
Frauds,  Statute  of;  Guaranty;  In 
demnity;  independent  contractors 
Insurance;  Landlord  and  Tena:st 
Life  Insurance;  Mseter  and  SnatvANT 
Rescission,  Cancellation  and  Retor 
MATiON;  Sales;  Spex:ific  Performance 
Suretyship;   Vendor  and  Purchaser. 

Of  compromise,  see  Compromise,  1. 

Agreement  of  seller  to  repurchase  corporate 
stock,  see  C^orporations,  23-28. 

Agreement  to  dispense  with  probate  of  will, 
see  Wills,  24,  25. 

Contracts  with  United  States,  see  United 
States,  1-6. 

Effect  of  war  on  contracts,  see  War,  6-7. 

Implied  agreement  for  compensation  for 
services  rendered  to  parent,  see  Parent 
AND  Child,  3. 

Liens  under  building  contracts,  see  Mechan- 
ics' Liens,  1-15. 

Option  contract  as  entitled  to  record,  see  Rej- 
coRDiNG  Acts,  1. 

Option  timber  contract,  see  Trees  and  Tim- 
ber, 1,  2. 

Power  of  municipalities  to  contract,  see  Mu- 
nicipal Corporations,  9,  10. 

Recovery  on  contract  where  contract  partly 
within  statute  of  frauds,  see  Frauds, 
Statute  of,  2. 

Severable   contract   for    employment   of   real 
estate  broker,  see  Brokers,  1,  10. 
Ann.  Cas.  Dig.  1918C-E.— 5. 


Validity  of  agieement  to  divide  fees  of  pul)- 
lic  officer,  see  Public  Officers,  12. 

Validity  of  contracts  between  husband  and 
wife,  see  Husband  and  Wife,  13,  14. 

Waiving  tort  and  suing  on  contract,  see 
Torts,  1,  2. 

1.  Elements. 

1.  Effect  of  intoxication  of  party. — ^The 
fact  that  a  party  to  a  contract  is  intoxicated 
at  the  time  of  entering  into  it  renders  the 
contract  voidable  only  and  it  is  ratified  by  a 
failure  to  disaffirm  it  within  a  reasonable 
time.  Bawlf  Grain  Co.  v.  Ross  (Can.) 
1918E-319.  (Annotated) 

2.  Consideration — Marriage  of  third  per- 
sons.— Four  days  before  the  marriage  of  de- 
fendant's daughter  to  G.,  defendant  and  G. 
executed  a  contract,  reciting  the  marriage 
engagement,  and  providing  that  defendant, 
in  consideration  of  all  that  was  therein  set 
forth,  agreed  to  pay  his  daughter  annually  a 
specified  sum,  the  first  payment  to  be  made 
on  a  specified  date,  which  was  the  date  of 
the  marriage.  On  the  date  of  the  marriage, 
the  first  payment  was  made  to  the  daughter. 
It  is  held  that  the  agi'eement  was  not  with- 
out consideration  on  the  theory  that  the 
only  consideration  was  G.'s  performance  of 
liis  legal  obligation  to  the  daughter,  as  G. 
and  the  daughter  jointly  could  have  rescind- 
ed or  modified  the  contract,  and  the  promise 
was  intended  to  affect  the  conduct  of  both 
and  not  of  G.  only;  it  being  a  legitimate  in- 
ference from  the  relations  of  the  parties  and 
the  other  attendant  circumstances  that  she, 
as  well  as  G.,  knew  of  the  promise  at  the 
time  of  the  marriage,  and  that  both  acted 
upon  the  faith  of  it.  De  Cicco  v.  Schweizer 
(K  Y.)    1918C-816.  (Annotated) 

3.  While  the  prospective  marriage  is  not  a 
consideration  for  the  promise  unless  the  par- 
ties treat  it  as  such,  the  defendant's  prom- 
ise is  an  agreement  in  consideration  of  the 
marriage  and  not  a  mere  offer  of  a  gift,  or 
at  least  the  inference  cannot  be  drawn  as 
one  of  law  that  it  is  not  a  promise  in  con- 
sideration of  marriage.  De  Cicco  v. 
Schweizer   (K  Y.)   1918C-816.       (Annotated) 

4.  The  promise  having  been  made  while  G. 
and  the  daughter  Avere  free  to  retract  or  to 
delay  the  marriage,  and  as  neither  retracted 
nor  delayed,  it  is  a  legitimate  inference  that 
they  were  induced  by  the  promise  to  put  the 
thought  of  rescission  or  delay  aside,  and,  to 
support  the  contract,  it  is  not  necessary  to 
show  that  the  daughter  was  ready  to  with- 
draw. De  Cicco  V.  Schweizer  (N.  Y.)  1918C- 
816.  (Annotated) 

5.  Since -under  such  a  contract  G.  does  not 
promise  anything  by  the  contract,  and  the 
consideration  is  not  a  promise,  but  the  act  of 
marrying,  the  contract  is  unilateral,  and  un- 
til the  marriage  occurs  defendant  is  not 
bound,  though  G.  remains  willing  to  marrv. 
De  Cicco  V.  Schweizer  (N.  Y.)  1918C-816. 

(Annotated) 

6.  As  the  promise  though  made  to  G.,  is 
intended  for  the  benefit  of  the  daughter,  she 
has  a  right  to  adopt  and  enforce  it  when  it 
comes  to  her  knowledge,  and  in  doing  so  she 


66 


ANN.  CAS.  DIGEST  (1918C-1918E). 


makes  herself  a  party  to  the  contract.     De 
Cicco  V.  Schweizer  (N.  Y.)  1918C-816. 

(Annotated) 

2.  Construction  and  Interpretation. 

7.  Construction  together  of  separate  in- 
struments.— Where  a  contract  is  executed 
which  refers  to  and  makes  the  conditions  of 
another  instrument  a  part  of  it,  the  two  will 
be  construed  together  as  the  agreement  of 
the  parties.  Aetna  L.  Ins.  Co.  v.  Bradford 
(Okla.)   1918C-373. 

8  Intent  of  parties. — The  cardinal  rule  of 
interpretation  is  the  discovery  of  the  intent 
and  meaning  of  the  parties  from  the  lan- 
guage used,  and  this  applies  to  sealed  as  well 
as  to  unsealed  writings.  Devy  v,  Connect- 
icut Co.  (Conn.)  1918r)-270. 

9.  If  the  intent  and  purpose  of  parties  to 
a  contract  is  reasonably  within  the  scope  of 
the  language  used,  it  must  be  taken  to  be  a 
part  of  the  agreement  as  if  plainly  expressed. 
Manson  v.  Curtis   (N.  Y.)  1918E-247. 

10.  The  ascertainment  of  the  substantial 
intent  of  the  parties,  as  expressed,  is  the 
fimdamental  rule  in  the  interpretation  of  all 
contracts,  such  intent  to  be  determined  in 
view  of  the  agreement  as  a  whole,  the  mat- 
ters with  which  it  deals,  and  the  circum- 
stances under  which  it  was  made.  Manson 
V.  Curtis  (K  Y.)  1918E-247. 

11.  Agreement  for  correspondence  school 
course.-^— Under  the  defendant's  contract  with 
plaintiff  university  for  coxirse  of  instruction 
by  correspondence,  "including  text  and  serv- 
ice as  outlined,  for  which  I  agree  to  pay 
.  .  .  $66  .  .  .  express  charges  on  text 
to  be  prepaid  by  the  university  and  included 
in  my  account,"  the  defendant  must  pay,  be- 
sides the  $66,  the  express  charges.  La  Salle 
Extension  University  v.  Ogburn  (N.  C.) 
1918C-887.  • 

3.  Validity. 

a.  In  General. 

12.  An  agreement  capable  of  a  construc- 
tion which  will  make  it  valid  will  not  be  ad- 
iudged  illegal.  Manson  v.  Curtis  (N.  Y.) 
1918E-247. 

13.  Partial  invalidity. — ^Where  the  main 
purpose  of  a  single  and  indivisible  contract 
between  corporate  stockholders  was  illegal, 
being  to  secure  a  passive  directorate,  sub- 
ject to  control  of  one  stockholder,  the  whole 
contract,  including  both  its  main  and  second- 
ary stipulations,  is  void  and  invalid.  Man- 
son  v.  Curtis  (N.  Y.)  1918E-247. 

14.  Good  faith  in  making  illegal  contract. 
— The  good  faith  of  corporate  stockholders 
in  making  an  agreement,  contemplating  a 
passive  directorate  to  be  controlled  by  one, 
does  not  purge  the  agreement  of  its  illegal- 
ity.   Manson  v.  Curtis  (X.  Y.)  1918E-247. 

b.  Contract  Contemplating  Practice   of  Law 
by  Corporation. 

15.  Where  a  defense  set  up  in  a  corpora- 
tion's action  on  a  contract  was  that  the  con- 
tract  was  void  because   plaintiflF  by   it   held 


itself  out  to  be  "lawfully  qualified  to  prac- 
tice law,"  and  not  because  plaintifT  by  it  un- 
dertook to  practice  law,  plaintiff '  cannot 
avoid  this  defense  by  showing  that  it  was 
not  illegal  for  it  to  practice  law,  and  that  its 
charter  authorized  it  to  practice  law  'so  far 
as  is  la'^vful."  Creditors  Nat.  Clearing  House 
v.  Bannwart  (Mass.)  1918C-130. 

c.  Contracts  for  the  Suppression  of  Bidding. 

16.  Agreement  to  purchase  jointly  at  auc- 
tion.— An  agieement  between  the  plaintiffs 
and  a  corporation  to  buy  jointly  the  fixtures 
and  stock  of  an  insolvent  at  public  sale  is 
not  invalid  where  made  for  the  legitimate 
purpose  of  combining  the  parties',  resources 
and  not  to  chill  or  suppress  bidding.  Stack 
V.  Eoth  Bros.  Co.   (Wis.)   1918C-741. 

17.  Such  agieement  is  not  unsupported  by 
consideration,  as  the  promises  of  the  parties 
each  to  furnish  half  of  the  purcliase  price 
are  performable,  concurrent,  and  mutually 
binding  at  the  same  time.  Stack  v.  Roth 
Bros.  Co.  (Wis.)  1918C-742. 

d.  Relief  of  Parties. 

18.  Contracts  having  a  tendency  to  injure 
public  service  are  in  a  different  class  from 
other  gambling  contracts  regarding  any  re- 
lief to  be  afforded  thereunder  by  the  courts. 
Martin  v.  Francis   (Ky.)   1918E^289. 

19.  Recovery  back  of  deposit. — Where  a 
candidate  deposits  money  with  a  third  party 
to  secure  performance  of  an  agreement  with 
his  opponent  to  appoint  him  deputy,  and  di- 
vide fees  upon  the  latter's  withdrawal  of  his 
candidacy,  just  previous  to  election,  and  the 
stakeholder  loans  the  money  to  another  par- 
ty after  the  agreement  has  been  acted  upon, 
the  depositor  cannot  recover  the  money  de- 
posited.    Martin  v.  Francis  (Ky.)   1918E-289. 

20.  Exception  to  rule. — The  plaintifT  pur- 
chased from  a  patent  holder  of  a  crude  oil 
burner  an  agency  contract  to  sell  'family 
rights"  and  "agency  contracts."  The  agency 
contract  was  a  characteristic  scheme  in  the 
nature  of  "an  endless  chain,"  and  void  as 
against  public  policy.  To  secure  the  pur- 
chase price  of  the  agency  contract,  the  plain- 
tiflF gave  the  patent  holder  a  deed  to  some 
property,  the  deed  being  intended  to  operate 
as  a  mortgage.  An  attaching  and  judgment 
creditor  of  the  patentee  sought  to  subject 
the  property  to  the  satisfaction  of  his  claim 
and  judgment  against  the  patent  holder. 
Held,  that  the  fact  that  the  plaintiff,  in  the 
original  contract,  was  in  equal  wrong  with 
the  patent  holder  will  not  prevent  a  court  of 
equity  from  granting  plaintiflF  relief  when  its 
refusal  to  do  so  would  in  effect  give  counte- 
nance, force  and  effect  to  the  original  illegal 
contract  between  the  plaintiflF  and  the  pat- 
entee and  carry  its  consequences  even  further 
than  the  contracting  parties  intended.  Say- 
lor  v.  Crooker  (Kan.)  1918D-473. 

(Annotated) 

4.  Performance   or  Breach. 

21.  Partial  rescission. — One  cannot  repudi- 
ate part  of  his  entire  contract  and  retain  the 


GONTRACTS. 


67 


benefit  of  another  part.     La  Salle  Extension 
University  v.  Ogburn   (X.  C.)   1918C-887. 

22.  Overcharge  as  ground  for  repudiation. 
— Any  overcharge  in  statement  of  account 
sent  defendant  does  not  authorize  abandon- 
ment or  repudiation  by  him  of  his  contract 
with  plaintiff  for  a  course  of  instruction  by 
correspondence,  and  refusal  to  pay  anything; 
but  he  should  pay  what  is  due,  and  decline 
to  pay  the  overcharge.  La  Salle  Extension 
University  v.  Ogburn  (N.  C.)  1918C-887. 

23.  Remedies  on  breach. — Defendant,  by 
repudiating  his  contract  for  a  course  of  in- 
struction by  correspondence  payable  in 
instalments,  and  refusing  to  pay  the  first 
instalment,  cannot  prevent  plaintiff  perform- 
ing and  recovering  the  full  amount  agreed 
on;  especially  where  the  contract  provides 
that,  if  an  instalment  is  not  paid  in  a  cer- 
tain time  after  due,  the  unpaid  balance  shall 
become  immediately  due.  La  Salle  Exten- 
sion University  v.  Ogburn  (N.  C.)  1918C- 
887,  (Annotated) 

5.  Building    or  Working   Contracts. 

a.  Construction    of   Provisions. 

24.  Severable  contract. — A  contract  to 
drive  certain  piling,  at  a  stipulated  price  per 
pile,  to  make'  certain  excavation  for  a  coflFer- 
dam,  and  to  afterwards  remove  the  embank- 
ment, at  a  stipulated  price  per  cubic  yard, 
and  to  provide  a  pump  of  sufficient  capacity 
and  efficiency  to  perform  the  contract,  at  a 
stipulated  price  per  day,  etc.,  is  not  a  con- 
tract of  entiretv.  Parkersburg,  etc.  Sand 
Co  v.  Smith  (W.'  Va.)   1918E-449. 

b.  Performance  or  Breach. 

25.  Breach. — Where  plaintiffs  contract 
with  defendant  to  buy  jointly  an  insolvent's 
fixtures  and  stock  at  public  sale,  and,  after 
making  financial  arrangements,  Avhich  are 
necessary  for  them  to  care  for  their  half  of 
the  price,  are  advised  by  defendant  at  the 
last  moment,  when  tliey  are  not  able  to  take 
care  of  themselves,  that  defendant  will  not 
perform  its  part  of  the  agi-eement  and  fur- 
nish its  half  of  the  price,  plaintiffs  sustain 
damage.  Stack  v.  Roth  Bros.  Co.  (Wis.) 
19180-741. 

26.  Effect  of  renunciation  by  one  party. — 
An  absolute  renunciation  of  a  contract  by 
one  of  the  parties  thereto  constitutes  a 
breach  thereof,  and  also  relieves  the  other 
from  performance  of  his  promise  or  cove- 
nant. Lewis  v.  West  Virginia  Pulp,  etc.  Co. 
(W.  Va.)    1018D-754. 

27.  Arbitration— Effect.— The  award  of 
the  arbitrators,  Horstman  and  Burgess, 
made  pending  the  execution  of  plaintiff's 
contracts,  requiring  it  to  remove  the  coffer- 
dam embankment  to  the  srtisfaction  of  the 
government  of  the  United  States,  omitting 
the  other  words  of  the  original  contract,  re- 
quiring that  work  to  be  done  to  the  satis- 
faction of  defendant  also,  and  the  acceptance 
thereof  by  the  parties,  properly  construed, 
did  not  constitute  a  modification  of  that 
provision  of  the  original  contract.     Parkers- 


burg,   etc.    Sand    Co.    v.    Smith     (W.    Va.) 
1918E-449. 

28.  Destruction  of  building. — ^Where  a 
building  is  burned  before  completed,  unless 
the  building  contract  is  mutually  abandoned, 
the  contractor  must,  in  the  absence  of  pro- 
vision to  the  contrary",  stand  the  loss  and  re- 
build to  be  entitled  to  any  payment;  such 
destruction  not  preventing  performance  so 
as  to  excuse  it  under  Civ.  Code,  §  1511.  Ahl- 
gren  v,  Walsh   (Cal.)   1918E-751. 

29.  Within  a  building  contract  apportion- 
ing between  owner  and  contractor  the  loss  in 
case  of  destruction  by  fire  or  earthquake  of 
the  building  before  completion,  varying  as 
the  destruction  is  complete  or  partial,  there 
is  a  complete  destruction  where  on  one  day 
an  earthquake  does  some  injury  to  it,  and 
on  the  next  day  fire  started  by  the  earth- 
quake reaches  the  building  and  entirely  de- 
stroys it.  Ahlgren  v.  Walsh  (Cal.)  1918E- 
751. 

30.  Under  the  provision  of  a  building  con- 
tract that,  if  the  work  before  completion  be 
wholly  destroyed  by  fire,  the  loss  shall  be 
sustained  by  the  owner  to  the  extent  that  he 
has  paid  instalments  or  that  may  be  due,  the 
contractor  is  entitled  to  payment  of  an  in- 
stalment due  at  the  time  of  the  fire,  before 
reconstructing  the  building  up  to  the  point 
where  such  instalment  became  due.  Ahlgi'en 
V.  Walsh  (Cal.)  1918E-751. 

31.  Architect's  certificate.  —  Under  the 
owner's  agreement  to  pay  the  contractor  an 
instalment  when  a  certain  work  on  the  build- 
ing is  finished,  provided  that,  when  the  in- 
stalment becomes  due,  a  certificate  shall  be 
obtained  from  the  architect,  such  certificate, 
in  the  absence  of  contrary  provision,  is  neces- 
sary for  the  instalment  to  be  payable  and 
right  of  action  thereon  to  accrue.  Ahlgren 
V.  Walsh  (Cal.)  1918E-751. 

32.  Within  the  provision  of  a  building 
contract  that,  if  the  work  before  completion 
be  wholly  destroyed  by  fire,  then  the  loss  oc- 
casioned thereby  shall  be  sustained  by  the 
OAvner  to  the  extent  that  he  has  paid  instal- 
ments thereon,  or  that  may  be  due  under  the 
fifth  clause  of  the  contract,  and  the  contrac- 
tor shall  sustain  the  loss  for  the  uncompleted 
portion  of  the  work  on  which  he  may  be  en- 
gaged at  the  time  of  the  loss,  and  for  which 
no  payment  is  yet  due  under  said  fifth 
clause,  the  contractor  having  before  the  fire 
finished  a  portion  of  the  work,  on  the  finish- 
ing of  which  the  owner  by  the  fifth  clause 
agreed  to  pay  the  contractor  an  instalment, 
provided  that,  when  an  instalment  shall  be- 
come due,  a  certificate  shall  be  obtained 
from  the  architect  stating  that  the  instal- 
ment is  due,  such  instalment  is  "due"  at  the 
time  of  the  fire,  though  a  certificate  had  not 
been  obtained  from  the  architect;  "due"  be- 
ing used  in  the  sense  of  an  instalment 
earned,  unpaid,  and  owing  though  a  certif- 
icate had  not  been  obtained  to  make  it  pay- 
able under  the  fifth  clause.  Ahlgren  v. 
Walsh    (Cal.)    1918E-751  (Annotated) 

c.  Bond  of  Contractor. 

33.  Liability    of    surety. — Where    contrac- 


68 


ANN.  CAS.  DIGEST  (11)18C-1918E). 


tors  agree  to  build  a  road  and  to  pay  "for 
all  labor  and  material  and  all  other  obliga- 
tions or  liabilities  incurred  in  the  doing  of 
the  said  work  or  performance  of  any  of  the 
things  necessary  hereunder,"  and  a  surety 
company,  for  a  valuable  consideration,  guar- 
antees the  performance  of  the  contract,  and 
where  the  contractors  fail  to  pay  the  neces- 
sary and  pertinent  bills  incurred  by  them  in 
such  undertaking,  the  surety  company  is  lia- 
ble thereon.  Shannon  v.  Abrams  (Kan.) 
1918E-502.    . 

34.  Claims  covered. — ^In  a  road-building 
contract  which  named  the  quarry  where  the 
materials  for  the  road  were  to  be  obtained, 
the  contractors  failed  to  pay  the  necessary 
and  pertinent  accounts  for  dynamite,  for 
coal  consumed  in  the  engine  which  operated 
the  rock  crusher,  for  lumber,  for  the  rent  of 
the  quarry,  and  for  the  rent  of  tools.  Held, 
that  the  surety  company  was  liable  for  the 
payment  of  these  accounts  under  its  surety 
obligation.  Shannon  v.  Abrams  (Kan.) 
1918E-502. 

d.  Actions, 

35.  Recovery  on  quantum  meruit. — ^Wbere 
a  party  to  a  contract  fails  to  furnish  a 
pumping  outfit  of  the  capacity  and  efficien- 
cy called  for  by  his  contract,  he  is  not  en- 
titled to  recover  the  full  price  per  diem  stip- 
ulated therefor  in  the  contract,  but  only 
such  sum  as  the  same  is  reasonably  worth  to 
the  other  party  to  the  contract.  Parkers- 
burg,  etc.  Sand  Co.  v.  Smith  (W.  Va.) 
1918E-449. 

36.  Pleading. — Mutual  abandonment  of  a 
building  contract,  as  regards  reconstruction 
of  the  building,  after  its  destruction  while 
incomplete,  to  be  the  foundation  of  a  recov- 
ery by  the  contractor  of  an  instalment  due 
before  the  destruction,  must  be  pleaded;  if 
not  being  enough  that  it  appears  in  the  ev- 
idence.    Ahlgren  v.  Walsh  (Cal.)  1918E-751. 


CONTRIBUnOir. 

Bar  of  right  by  limitations,  see  Limitation 

OF  Actions,  4. 
Subrogation  as  against  coparties,  see  Stjbbo- 

GATION,    4. 


CONTRIBUTORY  NEGUGIINCE. 

See  NEX3LIGENCE,  4,  5,   10. 

Of  boy  injured  by  contact  with  broken  elec- 
tric wire,  see  ELECTRiGiry,  17. 

Of  guest  in  automobile,  see  Aittomobiles,  22, 
23. 

Of  passenger,  see  Cabbiebs  op  Passengebs, 
14. 

Of  person  struck  by  automobile  after  alight- 
ing from  street  car,  see  Automobiles,  3, 
4. 


CONVERSATION. 

Admissibility  of  entire  conversation  where 
part  produced  in  evidence,  see  Admis- 
sions AND  Declarations,  21,  22. 


CONVERSION. 

Unauthorized    use    by    bailee    as    conversion, 
see  Bailment,  2. 

1.  Effect  of  return  of  property. — In  an  ac- 
tion of  trover  for  the  conversion  of  an  auto- 
mobile, evidence  of  the  return  of  the  car  may 
be  shown  in  mitigation  of  damages,  but  not 
in  bar  of  the  action.  Baxter  v.  Woodward 
(Mich.)  1918C-946. 

2.  Necessity  of  demand. — ^Where  there  is 
an  overt  act  of  conversion,  no  demand  by  the 
owner  is  necessary  before  bringing  action. 
Baxter  v.  Woodward  (Mich.)   1918G-946. 

3.  Evidence  of  compromise  negotiations  is 
held  to  be  insufficient  to  prove  a  settlement 
of  the  cause  of  action  for  conversion  of  an 
automobile.  Baxter  v.  Woodward  (Mich.) 
1918C-946. 

4.  Question  for  jury.— In  an  action  of 
trover  for  the  conversion  of  an  automobile, 
w^hether  there  was  a  settlement  or  waiver  of 
the  tort  is  a  question  of  fact.  Baxter  v 
Woodward   (Mich.)    1918C-946. 

5.  Measure  of  damages. — The  measure  of 
damages  for  the  conversion  of  an  automobile 
is  the  value  of  the  car  at  the  time  converted 
with  interest  thereon.  Baxter  v.  Woodward 
(Mich.)  1918C-946. 


CORONERS. 

Coroner's  verdict  sent  to  insurer  at  its  re- 
quest as  part  of  proofs  of  death,  see  Life 
Insubance,  13. 


CORPORATIONS. 

1.  Matters  Relating  to  Corporate  Existence, 

69. 

2.  Duties  and  Liabilities,  69. 

3.  Officers  and  Agents: 

a.  Liability: 

(1)  To  Third  Persons,  69. 

(2)  Equitable  Relief   to   Stockhold- 

ers, 70. 

b.  Duties,  Powers  and  Liabilities  of  Di- 

rectors, 70. 

4.  Stock  and  Stockholders: 

a.  Subscription  to  Stock,    70. 

b.  Nature  of  Ownership,  71. 

c.  Duplication  of  Lost  Certificate,  71. 

d.  Rights   and  Powers   of  Stockholders: 

(1)  Management      of      Corporation, 

7L 

(2)  Right  to  Vote,  72. 

(3)  Voting  Trusts,  72. 

(4)  Actions,  72. 

6.  Insolvency  and  Receivers,  72. 
6.  Foreign  Corporations: 

a.  Rights  in  Respect  to  Real  Estate,  72. 


CORPORATIONS. 


69 


b.  Statutory  Regulation: 

(1)  Imposition     of     License      Tax, 

72. 

(2)  What   Constitutes    Doing  Busi* 

ness,  72. 
c.  Actions  by  and  against  Foreign  Cor- 
porations, 73. 

See  Sexeficial  Associations  ;  Building  and 
Loan  Associations;  Cabbiebs;  Insub- 
ANCE;   Lighting  Distbicts;   Municipai. 

COBPOBATIONS  ;  RaXLBOADS  ;  StBEETT  RAIL- 
WAYS; Telegbaphs  and  Telephones; 
Wateb  Companies  and  Watebwobks. 

Action  against  corporate  officers  on  lost  note, 
see  Lost  Insteuments,  1. 

Assignment  of  statutory  liability  of  corporate 
officer,  see  Assignments,  2. 

Delay  in  enforcing  subscription  to  corporate 
stock  as  laches,  see  Laches,  2,  3. 

Dissolution  of  corporation  as  abating  pend- 
ing suit  against  it,  see  Actions  and  Pbo- 
ceedings,  1. 

Foreclosure  of  pledge  of  corporate  stock,  see 
Pledge,  4. 

Liability  of  corporation  for  slanderous  words 
of  agejit,  see  Libel  and  Slandeb,  29,  30. 

Parol  evidence  as  to  liability  of  party  to  pool 
contract,  see  Evidence,  31. 

Parol  evidence  to  vary  stock  subscription 
contract,  see  Evidence,  28. 

Partial  invalidity  of  contract  between  cor- 
porate stockholders,  see  Contbaots,  13, 
14. 

Pledge  of  corporate  stock,  see  Pledge,  3. 

Stock  dividends  as  part  of  corpus  of  trust 
estate  or  of  income,  see  Tbusts  and 
Teustees,  17. 

Use  of  money  of  corporation  for  election  ex- 
penses, see  Elections,  19. 

What  constitutes  practice  of  law  by  corpora- 
tion, see  Attobneys,  1. 

1.  Matters  Relating  to  Corporate  Existence. 

1.  Prerequisites  to  existence. — The  stat- 
utory requirements  provided  by  section  8632 
et  seq.,  General  Code,  for  the  creation  of  a 
corporation  are  mandatory  and  must  be  com- 
plied with  before  the  corporation  can  be  in 
existence.  Parkside  Cemetery  Assoc,  v. 
Cleveland,  etc.  Traction  Co.  (Ohio)  1918C- 
1051. 

2.  Change  of  name — ^Effect  on  prior  guar- 
anty.— Where  the  name  of  a  corporation,  the 
principal  in  a  continuing  guaranty  contract, 
is  changed,  but  the  same  president  continues 
in  charge,  and  guarantors  continue  as  stock- 
holders, directors,  and  officers,  and  the  stock- 
holders' vote  for  the  change  was  unanimous, 
the  change  does  not  relieve  the  guarantors 
from  their  liabilitv.  Scovill  Mfg.  Co.  v,  Cas- 
sidy  (111.)   1918E-602. 

3.  Estoppel  to  deny  cori>orate  existence.— 
Where  parties  contracted  and  dealt  with 
each  other  as  corporations,  although  the 
name  of  plaintiff's  assignor  had  not  been 
changed,  as  assumed,  each  is  estopped  to 
deny  the  corporate  capacity  of  the  other,  and 
defendant's  contention  that  the  contract  was 
not  assignable,  because  it  relied  on  the  skill 
of  one  who  signed  as  president  of  plaintiff's 


assignor,    cannot    be    sustained.      Northwest 
Auto  Co.  v.  Harmon  (U.  S.)  1918E-461. 

4.  A  dissolved  corporation  which  takes  an 
appeal  from  a  decree  against  it  and  gives 
bond  for  its  successful  prosecution  is  not  in 
a  position  to  assert  that  it  is  nonexistent 
and  incapable  of  maintaining  and  defending 
pending  suits.  Pease  v.  Rathbun-Jones  En- 
gineering Co.   (U.  S.)   1918C-1147. 

5.  Dissolution  at  instance  of  minority 
stockholder.— It  is  the  general  rule  that 
courts  are  without  authority  to  dissolve  a 
corporation  at  the  suit  of  a  minority  stock- 
holder unless  such  authority  has  been  con- 
ferred by  statute.  Different  courts  recognize 
various  exceptions  to  this  rule;  but  the  facts 
do  not  bring  this  case  within  such  exceptions 
and  do  not  justify  the  dissolution  of  the  cor- 
poration. Thwing  V.  McDonald  (Minn.) 
1918E-420.  (Annotated) 

2.  Duties  and  Liabilities. 

6.  Torts  of  Agents. — ^A  corporation  is  lia- 
ble for  the  torts  of  its  agents,  within  the 
scope  of  their  employment,  and  in  further- 
ance of  the  corporate  business;  and  this  in- 
cludes libel.  Morse  v.  Modem  Woodmen  of 
America    (Wis.)    1918D-480.  (Annotated) 

3.  Officers  and  Agents, 
a.  Liability.  i 

(1)  To  Third  Persons. 

7.  Effect  of  change  of  officers. — ^Under 
Acts  1909,  p.  643,  requiring  corporation  offi- 
cers to  make  statements  to  the  county  clerk 
of  financial  conditions  of  the  corporation  and 
making  them  civilly  and  criminally  liable  for 
debts  on  failure  to  do  so,  the  duty  imposed 
is  official  and  ceases  when  the  individual 
ceases  to  be  an  officer,  and  the  civil  liability 
of  such  officers  includes  only  debts  contract- 
ed while  they  are  in  office.  Breitzke  v.  Bank 
of  Grand  Prairie  (Ark.)   1918D-792. 

8.  Under  such  statute,  new  officers  must 
acquaint  themselves  with  corporation  affairs, 
and,  if  the  required  report  has  not  been 
made,  must  make  it  within  a  reasonable 
time,  and  if  they  do  not  the  civil  and  crim- 
inal liability  attaches  to  them,  and  the  out- 
going officers  continue  to  be  liable  only  for 
debts  of  their  administration,  and  not  for 
those  contracted  after  their  term.  Breitzke 
v.  Bank  of  Grand  Prairie  (Ark.)   1918D-792. 

(Annotated) 

9.  Where  newly  elected  officers  of  a  cor- 
poration failed  for  one  year  to  file  the  report 
required  by  Acts  1909,  p.  643,  which  makes 
them  liable  for  the  corporation  debts  and 
criminally  liable  for  failure  to  report  within 
a  reasonable  time,  they  cannot  escape  liabil- 
ity on  the  ground  that  the  debt  was  that 
contracted  under  former  officers,  where  it 
was  represented  by  an  overdi-aft  which  was 
frequently  during  their  'terms  reduced  to 
practically  nothing  and  later  increased. 
Breitzke  v.  Bank  of  Grand  Prairie  (Ark.) 
1918D-792.  (Annotated) 

10.  Estoppel  to  enforce  liability. — Al- 
though  corporation    officers   on   giving   their 


ISO 


AXiSr.  CAS.  DIGEST  (1918C-1'918E). 


note  for  a  corporation  debt  secured  the  prom- 
ise of  the  payee  that  it  would  not  hold  them 
personally  liable  thereon,  the  payee  is  not 
estopped  to  claim  the  statutory  liability  im- 
posed by  Acts  1909,  p.  643,  ior  failure  to 
make  required  financial  reports.  Breitzke 
V.  Bank  of  Grand  Prairie   (Ark.)   1918D-792. 

11.  Evidence. — In  an  action  to  enforce  the 
liability  of  corporate  officers  for  debts  in- 
curred by  the  corporation  with  their  consent, 
and  with  knowledge  that  less  than  half  tlie 
capital  stock  had  been  subscribed,  under  the 
provision  therefor  of  St.  1913,  §  1774n,  the 
evidence  is  held  to  be  sufficient  to  support  a 
finding  that  half  of  the  capital  stock  remained 
so  unsubscribecl.  Weston  v.  Dahl  (Wis.) 
1918C-922. 

12.  In  such  action  it  was  no  objection  to 
the  introduction  in  evidence  of  a  copy  certi- 
fied by  the  secretary  of  state  of  the  amend- 
ment of  the  articles  of  incorporation  increas- 
ing the  capital  stock,  that  the  certificate  of 
the  register  of  deeds  attached  thereto  was 
not  properly  identified,  since  such  register's 
certificate  was  part  of  the  record  of  the  sec- 
retary of  state  under  the  provision  of  St. 
1913,  §  1774n,  requiring  the  filing  of  such 
register's  certificate  with  the  secretary  of 
state.     Weston  v.  Dahl  (Wis.)  1918C-922. 

13.  In  determining  in  such  action  the 
amount  of  capital  stock  actually  subscribed, 
the  court  properly  excluded  oral  promises  to 
take  stock,  since  they  were  not  subscriptions 
within  the  meaning  of  the  statute.  Weston 
v.  Dahl   (Wis.)   1918C-922. 

14.  Such  oral  promises  are  further  inad- 
missible   for    such    purpose,    since    being   for 

"more  than  $50  worth  of  stock  they  are  unen- 
forceable under  St.  1913,  §  2308,  regulating 
contracts  for  the  sale  of  goods  and  things  in 
action.    Weston  v.  Dahl  (Wis.)  1918C-922. 

(2)  Equitable  Relief  to  Stockholders. 

15.  Where  the  control  of  a  corporation  is 
involved,  the  remedy  at  law  for  damages  for 
the  improper  sale  of  stock  is  inadequate,  and 
where  fraud  on  the  part  of  those  managing 
the  company  as  against  the  rights  of  the 
stockholders  is  averred,  a  court  of  equity  has 
jurisdiction  to  inquire  into  the  transaction, 
and  make  such  decree  as  the  circumstances 
may  warrant.  Glenn  v.  Kittanning  Brewing 
Co.  (Pa.)  1918D-770. 

16.  Conditions  precedent. — A  stockholder 
cannot  generally  proceed  as  an  individual  to 
redress  a  wrong  done  to  the  corporation 
without  a  formal  demand  upon  and  a  refusal 
by  the  corporation  to  bring  proper  action,  but 
stockholders  are  not  required  to  do  a  vain 
thing,  and  where  the  wrongdoers  are  the  ma- 
jority of  the  board  of  directors  it  is  not  rea- 
sonable to  suppose  that  a  demand  upon  them 
would  be  effective,  and  stockholders  maj'  in- 
stitute proceedings  in  their  own  name  with- 
out first  demanding  action  by  the  corpora- 
tion's officers.  Glenn  v.  Kittanning  Brewing 
Co.  (Pa.)  1918D-770. 

17.  Evidence. — On  a  bill  in  equity  by  a 
stockholder  of  a  brewing  company  in  behalf 
of  himself  and  others  to  enjoin  a  director 
from  voting  or  transferring  certain  stock,  the 


evidence  is  held  to  sustain  a  finding  that  the 
issue  of  stock  had  been  made  to  gain  control 
of  the  corporation.  Glenn  v.  Kittanning 
Brewing  Co.  (Pa.)  1918D-770. 

b.  Duties,  Powers  and  Liabilities   of   Direc- 
tors. 

18.  By  Gen.  Corp.  Law,  §  34  (McKinney's 
Consol.  Laws,  book  22,  p.  174),  the  affairs  of 
every  corporation  shall  be  managed  by  its 
board  of  directors,  subject,  by  section  11, 
subd.  5  (McKinney's  Consol.  Laws,  book  22, 
p.  76),  and  Stock  Corp.  Laws,  §  30  (McKin- 
ney's Consol.  Laws,  book  58,  p.  113).  to  the 
valid  bv-laws  adopted  by  the  stockholders. 
Manson'v.  Curtis  (X.  Y.)  1918E-247. 

19.  Delegation  of  powers. — The  directors 
of  a  corporation  convened  as  a  board  are  the 
primary  possessors  of  all  the  powers  con- 
ferred by  the  charter,  and  may  delegate  to 
agents  of  their  own  appointment  the  per- 
formance of  any  acts  which  they  themselves 
can  perform.  Manson  v.  Curtis  (N.  Y.) 
1918E-247. 

20.  Agreement  to  give  control  over  direc- 
tors.— Corporations  being  the  creatures  of 
the  state,  bound  to  comply  with  its  exactions 
and  regulations,  an  agreement  between  two 
corporate  stockholders,  the  fundamental  and 
dominant  purpose  of  which  is  to  provide  a 
passive  president  of  the  board  of  directors  and 
passive  directors,  subservient  to  the  will  of 
one  of  the  stockholders  in  the  management 
of  the  corporation,  is  illegal  and  void,  and  its 
violation  is  not  a  basis  for  a  cause  of  action. 
Manson  v.  Curtis  (N.  Y.)  1918E-247. 

(Annotated) 

21.  Fiduciary  relation  to  stockholders. — 
The  directors  of  a  corporation  stand  in  the 
position  of  trustees  for  the  stockholders,  and 
while  stock  owned  by  director  is  his  individ- 
ual property,  which  he  may  deal  with  as  he 
sees  fit,  yet  when  he  acts  officially  he  acts  as 
representativ^es  of  others,  and  cannot  take  an 
advantage  of  his  position  for  his  personal 
profit  to  the  detriment  of  the  stockholders. 
Glenn  v.  liittanning  Brewing  Co.  (Pa.) 
1918D-770.  (Annotated) 

22.  As  to  new  issue  of  stock. — The  direc- 
tors of  a  corporation  must  give  its  stockhold- 
ers notice  of  a  new  issue  for  stock  and  an  op- 
portunity to  subscribe  for  stock  in  jiroportion 
to  their  present  holdings,  although  such  issue 
may  be  long  after  the  corporation's  business 
was  begun,  and  if  they  fail  to  give  such  no- 
tice and  purchase  the  stock  themselves  in  or- 
der to  gain  control  of  the  corporation,  the  is- 
sue may  be  set  aside  at  the  instance  of  a 
stockholder.  Glenn  v.  Kittanning  Brewing 
Co.   (Pa.)   1918D-770.  (Annotated) 

4.  Stock   and  Stockholders. 
a.  Subscription  to  Stock. 

23.  Validity  of  agreement  to  repurchase. 
— A  contract  whereby  the  seller  of  corporate 
stock  agreed  to  repurchase  it  at  any  time  up- 
on demand,  should  the  buyer  become  dissatis- 
fied, was  legal  and  binding,  violating  no  stat- 
ute, and  not  being  against  public  policy,  and 


COEPORATIOXS. 


n 


one  which  the  courts  cannot  unmake  mere- 
ly because  it  may  have  been  unwisely  made. 
Paulson  V.  Weeks  (Ore.)  1918D-741. 

(Annotated) 

24.  Construction  of  contract  to  repurchase. 
— A  contract  whereby  the  seller  of  corporate 
stock  agrees  to  repurchase  on  demand,  if  the 
buyer  is  dissatisfied,  is  not  a  conditional  con- 
tract for  the  sale  or  return  of  the  stock,  but 
embraces  a  completed  sale,  with  an  option  in 
the  buj^er  to  rescind.  Paulson  v.  Weeks 
(Ore.)   1918D-741.  (Annotated) 

25.  A  contract  for  the  sale  of  stock  of  a 
mining  company,  giving  the  buyer  the  option 
to  rescind  if  he  becomes  dissatisfied  with  his 
purchase  "at  any  time  thereafter,"  sets  a 
reasonable  time,  and  does  not  give  unlimited 
time,  though  primarily  "any"  implies  unlim- 
ited choice  as  to  the  particular  unit,  num- 
ber or  quantity,  and  generally  signifies  an 
indeterminate  unit  or  number  of  units  out 
of  many  or  all,  as  "any  time,"  employed  in 
such  agreements,  means  reasonable  time. 
Paulson  v.  Weeks  (Ore.)  1918D-741. 

(Annotated) 

26.  Under  such  contract  if  the  buyer  be- 
comes dissatisfied,  he  ha,s  the  right  to  rescind, 
when  he  becomes  honestly  and  in  good  faith 
dissatisfied.  Paulson  v.  Weeks  (Ore.)  1918D- 
741.  (Annotated) 

27.  Ordinarily  the  question  of  what  is  a 
reasonable  time  for  the  exercise  of  such  an 
option  must  be  submitted  to  the  jury.  Paul- 
son V.  Weeks  (Ore.)  1918r)-741. 

(Annotated) 

28.  The  buyer  of  stock  in  a  mining  com- 
pany, who  waits  for  more  than  seven  years 
from  the  date  of  the  contract  of  sale,  more 
than  five  years  from  the  completion  of  the 
sale,  and  more  than  three  years  from  the 
time  he  becomes  dissatisfied,  before  exercis- 
ing his  option  to  demand  rescission,  fails  to 
exercise  such  option  within  a  reasonable 
time.    Paulson  v.  W^eeks  (Ore.)  1918D-741. 

(Annotated) 

29.  Liability  on  unpaid  subscription. — A 
corporation's  right  to  recover  in  an  action  on 
the  unpaid  subscriptions  of  certain  stockhold- 
ers will  not  be  affected  by  the  fact  that  an- 
other stockholder  is  similarly  indebted. 
Bergman  v.  Evans  (Wash.)   1918C-848. 

30.  A  showing  that  an  agreement  was 
made  with  one  of  the  defendants,  subscribing 
stockholders,  that  no  assessment  would  ever 
be  levied  on  his  unpaid  stock  and  that  he 
would  never  be  required  to  pay  more  than 
the  amount  already  paid,  in  the  absence  of  a 
showing  that  the  creditors  dealt  with  the 
corporation  with  notice  of  the  agreement,  is 
not  such  an  element  of  fraud  as  will  serve  as 
a  defense  against  the  liability  of  the  other 
defendants  on  their  subscriptions.  Bergman 
V.  Evans   (Wash.)   1918C-848. 

31.  Necessity  of  prior  call. — Under  Bal.  & 
Rem.  Code,  §  3694,  requiring  corporate 
trustees  to  make  a  call  for  unpaid  subscrip- 
Aons  on  proper  notice,  and  a  subscription 
contract  providing  that  the  .subscriptions 
should  be  payable  on  call  of  twenty  days'  no- 
tice issued  by  the  board  of  directors,  an  ac- 
tion in  equity  by  an  injured  stockholder,  who 


has  paid  for  his  stock  in  full,  against  delin- 
quent stockholders  and  controlling  directors 
for  their  refusal  to  call  for  unpaid  subscrip- 
tions due  from  themselves,  without  alleging 
that  any  call  had  been  made  by  the  directors, 
is  itself  equivalent  to  a  notice  of  call;  and 
a  court  of  equity  has  power  to  make  the 
call  on  such  showing.  Bergman  v.  Evans 
(Wash.)  1918C-848. 

32.  Such  cause,  on  appeal,  is  to  be  tried  de 
novo  and  the  complaint  deemed  to  be  amend- 
ed to  conform  to  the  proofs.  Bergman  v. 
Evans   (Wash.)    1918C-848. 

33.  Extent  of  liability. — In  an  action  by  a 
paid-up  stockholder  in  a  going  concern  to  re- 
cover unpaid  stock  subscriptions  as  part  of 
the  concern's  assets,  the  amount  collectible  is 
not  limited  to  so  much  pro  rata  as  may  be  re- 
quired to  pay  creditors  and  wind  up  the  af- 
fairs of  the  concern,  if  insolvent.  Bergman 
V.  Evans  (Wash.)   1918C-848. 

34.  Interest  on  such  subscriptions  is  prop- 
erly allowed  from  the  date  when  the  defend- 
ants were .  served  with  written  demand  by 
plaintiff  to  make  a  call,  under  the  rule  that 
interest  is  due  only  from  the  date  the  sub- 
scriber is  placed  in  default.  Bergman  v. 
Evans  (Wash)  1918C-848. 

b.  Nature  of  Ownership. 

35.  Negotiability.  —  Though  neither  in 
form  nor  character  is  a  certificate  of  cor- 
porate stock  negotiable  paper,  it  nearly  ap- 
proximates it  where  indorsed  in  blank  by  the 
owner  with  power  to  transfer  to  anyone  who 
may  obtain  possession  as  holder.  Will  v. 
George  Wiedemann  Brewing  Co.  (Ky.) 
1918E-62. 

c.  Duplication  of  Lost  Certificate. 

36.  Indemnity  to  corporation. — Where  cer- 
tificates of  corporate  stock  are  pledged  with 
a  bank  as  collateral  for  a  loan,  being  en- 
dorsed by  the  owner  with  blank  power  of  at- 
torney, authorizing  the  holder  to  transfer  or 
have  them  transferred  on  the  books  of  the 
company,  and  such  certificates  disappear 
from  the  bank,  being  lost  or  stolen,  the  cor- 
poration, though  it  continues  to  pay  divi- 
dends to  the  owner  of  the  stock  and  her  heirs, 
cannot  be  required  by  her  administrator  to  is- 
sue new  certificates  until  it  is  given  a  bond 
to  indemnify  it  against  loss,  possible  court 
costs,  and  attorney's  fees,  in  case  the  original 
certificates  come  to  light.  Will  v.  George 
Wiedemann  Brewing  Co.  (Ky.)  1918E-62. 

(Annotated) 

c.  Rights  and  Powers  of  Stockholders. 

(1)  Management  of  Corporation. 

37.  Generally,  corporate  stockholders  can- 
not act  in  relation  to  ordinary  business  of 
the  corporation,  and  cannot  control  the  di- 
rectors in  the  exercise  of  the  judgment  vest- 
ed in  them  by  virtue  of  their  office.  Manson 
V.  Curtis  (ia.Y.)  1918E-247. 

38.  Corporate  stockholders  do  not  confer 
and  cannot  revoke  the  powers  of  the  board  of 
directors,   which   are   derivative   only   in   the 


72 


ANN.  CAS.  DIGEST  (1918C-1918E). 


sense  of  being  received  from  the  state  in  the 
act  of  incorporation.  Mansou  v.  Curtis  (N, 
Y.)  1918E-247. 

(2)  Right  to  Vote. 

39.  Proxy. — A  "proxy,"  as  a  proxy  to  vote 
shares  given  by  one  corporate  stockholder  to 
another,  is  an  authority,  by  one  having  the 
right  to  do  a  certain  thing,  to  another  to  do 
it.    Manson  v.  Curtis  (N.  Y.)  1918E-247. 

^*iv  - 

:i,  (3)  Voting  Trusts. 

I'' 

40.  Definition. — A  "voting  trust  agree- 
ment" accumulates  in  the  hands  of  a  person 
or  persons  corporate  shares  of  several  own- 
ers in  trust  for  the  purpose  of  voting  them, 
in  order,  through  the  selection  and  election 
of  directors,  to  control  the  corporate  busi- 
ness and  affairs.  Manson  v.  Curtis  (N.  Y.) 
1918E-247. 

41.  Validity. — ^Agreements  between  cor- 
porate stockholders,  a  minority  in  number 
but  owning  the  majority  of  stock,  made  on 
sufficient  consideration,  to  unite  upon  a 
course  of  corporate  policy  or  action,  or  upon 
the  officer  whom  they  will  elect,  are  valid  and 
binding,  if  they  do  not  contravene  any  ex- 
press charter  or  statutory  provisions,  or 
contemplate  fraud,  oppression,  or  wrong 
against  other  stockholders,  or  other  illegal 
object.    Manson  v.  Curtis  (N.  Y.)  1918E-247. 

(Annotated) 

(4)  Actions. 

42.  Protection  of  minority  stockholder. — 
Where  minority  stockholders  are  being  de- 
prived of  their  property  rights  by  the  unlaw- 
ful acts  of  the  majority,  a  court  of  equity 
will  intervene  and  afford  them  such  relief  as 
may  be  necessary  to  adequately  protect  such 
property  rights.  Thwing  v.  McDonald 
(Minn.)  1918E-420. 

5.  Insolvency  and  Receivers. 

43.  Priority  of  claim  for  wages. — ^Labor 
Law  (Oonsol.  Laws,  c.  31)  §  9  (McKinney's 
Consol.  Laws,  Book  30,  p.  37),  providing  that, 
upon  the  appointment  of  a  receiver  of  a  part- 
nership or  of  a  corporation  organized  under 
the  laws  of  this  state  and  doing  business 
therein,  other  than  a  moneyed  corporation, 
the  wages  of  employees  shall  be  preferred  to 
every  other  debt  or  claim,  does  not  apply  to 
an  insolvent  foreign  corporation.  Riverside 
Contracting  Co  v.  New  York  (N.  Y.)  1918C- 
1075. 

44.  Labor  Law,  §  9  (McKinney's  Consol. 
Laws,  Book  30,  p.  37),  providing  for  the  pay- 
ment of  wages  by  the  receiver  of  a  partner- 
ship or  domestic  corporation  in  preference  to 
other  debts  and  claims,  relates  only  to  the 
distribution  of  the  assets  of  an  insolvent  cor- 
poration, and  would  not  make  such  wages 
payable  out  of  assets  which  had  been  as- 
signed before  insolvency.  Riverside  Contract- 
ing Co.  V.  New  York  (N.  Y.)  19180-1075. 


6.  Foreign  Corporations. 

a.  Rights  in  Respect  to  Real  Estate. 

45.  A  foreign  trust  comapny  in  acepting  a 
trust  and  executing  in  New  York  the  trust 
deed  on  land  in  Arizona,  does  not  violate  any 
law  of  Arizona.  Martin  v.  Bankers'  Trust 
Co.     (Ariz.)   1918E-1240.  (Annotated) 

b.  Statutory  Regulation. 
(1)  Imposition  of  License  Tax. 

46.  St.  Mass.  1909,  c.  490,  pt.  3,  §  56,  de- 
clares that  every  foreign  corporation  shall  in 
each  year  at  the  time  of  filing  its  annual  cer- 
tificate of  condition  pay  to  the  treasurer  and 
receiver  general,  for  the  use  of  the  common- 
wealth, an  excise  tax  of  one-fiftieth  of  one 
per  cent  of  the  par  value  of  its  authorized 
capital  stock,  but  the  amount  shall  not  in 
any  one  year  exceed  the  sum  of  $2,000.  St. 
Mass.  1914,  c.  724,  §  1,  declares  that  every 
foreign  corporation  subject  to  the  tax  im- 
posed by  the  preceding  act  shall,  at  the  time 
of  filing  its  annual  certificate  of  condition, 
pay  to  the  treasurer  and  receiver  general,  in 
addition  to  the  tax  imposed,  an  excise  tax  of 
one  one-hundredth  of  one  per  cent  of  the  par 
value  of  its  authorized  capital  stock  in  ex- 
cess of  $10,000,000.  The  two  acts  were  con- 
strued by  the  Massachusetts  courts  as  part  of 
one  general  taxing  scheme;  the  latter  remov- 
ing the  limitation  of  the  first.  It  is  held  that 
the  tax  as  assessed  against  a  foreign  corpora- 
tion, maintaining  an  office  in  the  state  of 
Massachusetts  and  doing  therein  an  intra- 
state and  an  interstate  business  is  invalid,  as 
a  direct  burden  on  interstate  commerce,  In- 
ternational Paper  Co.  v.  Commonwealth  of 
Massachusetts  (U.  S.)  1918C-617. 

(Annotated) 

(2)  What  Constitutes  Doing  Business. 

47.  A  single  transaction  does  not  consti- 
tute "carrying  on  business"  within  Civ.  Code 
1901,  pars.  909,  911,  forbidding  foreign  cor- 
porations to  carry  on  business  in  the  state 
except  on  compliance  with  certain  requisites. 
Martin  v.  Bankers'  Trust  Co.  (Ariz.)  1918E- 
1240.  (Annotated) 

48.  The  prosecution  of  a  suit  in  the  state 
is  not  "carrying  on  business"  within  Civ. 
Code  1901,  carrying  on  any  business,  enter- 
prise, or  occupation  in  the  state  until  it  has 
filed  a  certified  copy  of  its  articles  of  incor- 
poration or  charter  and  the  appointment  of 
an  agent,  and  has  made  publication  of  its  ar- 
ticles of  incorporation  and  proof  thereof. 
Martin  v.  Bankers'  Trust  Co.  (Ariz.)  1918E- 
1240.  (Annotated) 

49.  A  foreign  tobacco  corporation  which 
sold  its  business  within  a  state  pursuant  to 
a  trust  dissolution  decree  is  held  not  to  be 
"doing  business"  therein  so  as  to  subject  \\ 
to  service  of  process,  although  it  owned  stock 
in  local  subsidiary  companies  and  advertised 
its  goods  and  sent  soliciting  agents  within 
the  state.  People's  Tobacco  Co.  v.  American 
Tobacco  Co.  (U.  S.)  1918C-537. 


CORPUS  DELICTI— COURTS. 


Y3 


c.  Actions  by  and  against  Foreign  CJorpora- 
tions. 

50.  Substitution  of  parties. — In  an  action 
by  a  foreign  corporation  as  trustee  to  fore- 
close a  deed  of  trust,  bondholders  secured  by 
the  deed  of  trust  being  the  real  parties  in  in- 
terest, even  if  the  plaintiff  is  disqualified  to 
act  for  failure  to  comply  with  the  require- 
ments relating  to  foreign  corporations,  the 
bondholders  will  be  substituted  as  plaintiffs 
and  judgment  entered  according  to  their 
rights.  Martin  v.  Bankers'  Trust  Co.  (Ariz.) 
1918E-1240. 

51.  Service  of  process. — To  subject  a  for- 
eign corporation  to  service  of  process,  it  must 
be  doing  business  of  such  a  nature  and  char- 
acter as  to  warrant  the  inference  that  it  has 
subjected  itself  to  the  local  jurisdiction  and 
is,  by  its  duty  authorized  officers  or  agents, 
present  within  the  state  or  district.  Peo- 
ple's Tobacco  Co.  v.  American  Tobacco  Co. 
(U.  S.)   1918C-537. 

52.  Revocation  of  designation. — Where  a 
foreign  corporation  conveys  its  branch  with- 
in a  state  pursuant  to  a  trust  dissolution  de- 
cree, its  agent  therein  resigns,  and  his  power 
of  attorney  is  revoked  by  filing  an  instru- 
ment in  the  secretary  of  state's  office,  his 
agency  to  accept  service  for  the  foreign  cor- 
poration ceases.  People's  Tobacco  Co.  v. 
American  Tobacco  Co.  (U.  S.)  1918C-537. 

53.  An  instrument  revoking  a  power  of  at- 
torney to  accept  service  for  a  foreign  cor- 
poration's vice-president  and  attested  by  its 
seal  is  not  ineffectual  because  not  formally 
sanctioned  by  the  directors,  where  the  vice- 
president   apparently  had  the  necessary  au- 

.  thority.      People's   Tobacco   Co.   v.   American 
Tobacco  Co.  (U  S.)  1918C-537. 


CORPUS  DELICTI. 

In  prosecution  for  illegal  sale  of  liquor,  see 
IxTOxiCAXixG  Liquors,  16,  16. 

Cure  of  defects  in  proof  of  corpus  delicti,  see 
Appeal  and  Errob,  67. 

Proof  in  homicide  case,  see  Homicide,  4. 


COSTS. 

On  appeal,  see  Appeal  and  Ebbob,  121-124. 

Allowance  to  executor  in  proceeding  to  pro- 
bate will,  see  Wills,  23. 

Exclusion  of  costs  in  determining  jurisdiction 
on  appeal,  see  Appe^A.  and  Ebbob,  5. 

Taxation  of  fees  of  guardian  ad  litem,  see 
Infants,  5. 

1.  Security. — In  a  suit  before  a  justice  of 
the  peace,  where,  upon  defendant's  motion 
for  security  for  costs  one  of  plaintiff's  coun- 
sel stated  that  he  would  be  responsible  for 
costs,  and  no  further  action  was  taken,  and 
judgment  was  entered  for  plaintiff,  the  su- 
preme court  on  appeal  from  a  decree  enjoin- 
ing execution  on  the  judgment,  will  presume 
that  the  statement  was  accepted  by  defend- 
ant.   Welch  v.  Hannie  (Miss.)  1918C-325. 

2.  It  was  the  duty  of  defendant,  if  he  so 
desired,  to  have  the  court  pass  upon  his  mo- 
tion for  security  for  costs,  and  his  failure  to 
do  so  waives  his  rights.  Welch  v.  Hannie 
(Miss.)  1918C-325. 

3.  Cost  bond. — Upon  a  motion  made  for  a 
cost  bond,  under  the  provisions  of  section 
2892,  Comp.  Laws  1897,  it  is  discretionary 
with  the  court  as  to  whether  plaintiff  shall 
be  ruled  to  give  such  bond.  Roswell  v.  Bate- 
man  (N.  M.)  1918D-426. 


.  COUNTIES. 

Assignment  of  money  due  under  building  con- 
tract with  county,  see  Assignments,  4. 

County  fence  as  necessary  expense  for  which 
tax  can  be  levied  by  county,  see  Taxa- 
tion, 4. 

Validity  of  law  providing  for  construction  of 
county  fence,  see  Fences,  1. 


COUNTY    ATTORNEY. 

Reference  by  county  attorney  to  race  of  ac- 
cused, see  ABGUMEafT  and  Conduct  of 
Counsel,  2. 


CORRESPONDENCE    SCHOOLS. 

Construction  of  contract  for  course,  see  CoN- 
TBACTS,    11. 


CORROBORATION. 

See  Witnesses,  15-18. 

Of  accomplices  in  prosecution  for  homicide, 

see  Homicide,  11. 
Of  prosecutrix  in  prosecution  for  seduction, 

see  Reduction,  3. 


CORRUPT  PRACTICES  ACTS. 

Charging  illegal  use  of  money  by  candidate, 
see  Libel  and  Slander,  5,  7-9. 

Use  of  money  of  corporation  for  election  ex- 
penses, see  Elections,  19. 


COURTS. 

Effect  of  uncompleted  transfer  to  United 
States  by  grantee  from  state  as  affecting 
jurisdiction  of  suit  to  cancel  deed,  see 
Public  Lands,  12. 

Injimction  against  prosecution  of  suit  in 
state  court  because  of  pendency  of  action 
in  federal  court,  see  Injunction,  4. 

Judicial  review  of  apportionment  of  damages 
and  assessment  of  benefits  for  public 
improvements,  see  Taxation,  51. 

Judicial  review  of  discipline  of  member  of 
religious  society,  see  Religious  Socie- 
ties, 3-6. 

Jurisdiction  and  powers  of  appellate  courts, 
see  Appeal  and  Error,  2-8. 

Jurisdiction  of  court  of  bankruptcy,  see 
Bankbuptcy,   5. 


74 


ANK  CAS.  DIGEST  (191SC-1918E). 


Jurisdiction  of  petition  by  judgment  credi- 
tor of  one  insured  by  contract  of  casual- 
ty insurance  to  apply  insurance  money  to 
satisfaction  of  judgment,  see  Insxtbaitoe, 
43,  44. 

Jurisdiction  of  at&tfi  court  to  foreclose  mort- 
gage as  affected  by  subsequent  proceed- 
ings in  bankruptcy,  see  Bakkbuptcy,  3. 

Justice's  court  as  court,  see  Judges,  1. 

Original  jurisdiction  of  supreme  court  to 
hear  claims  against  state  as  relieving 
claimant  from  presenting  claim  to  state 
board  of  examiners,  see  States,  4. 

Ousting  jurisdiction  of  courts  by  contract  to 
arbitrate,  see  Conflict  of  Laws,  1. 

Power  of  court  of  equity  to  change  or  modi- 
fy trust,  see  Trusts  and  Teustees,  35- 
38, 

Power  of  court  to  order  bill  of  particulars  in 
criminal  cases,  see  Indictments  and  In- 

FOEilATIONS,  12. 

Power  to  punish  attorneys  for  misconduct, 
see  Attorneys,  18. 

Presumption  as  to  finding  of  intermediate 
court,  see  Appeal  and  Ebbob,  69. 

Proceedings  and  jurisdiction  in  juvenile 
courts,  see  Infants,  8-15. 

Review  of  findings  of  industrial  board,  see 
Masteb  and  Seevant,  26. 

Review  of  findings  of  trial  court,  see  Appeal 
AND  Ebbob,  49-50. 

Review  of  fiifdings  or  judgment  of  intermedi- 
ate courts,  see  Appeal  and  Ebbob,  53-57. 

Review  of  judgment  of  voters,  see  Public 
Officebs,  7. 

Weight  of  state  decision  •  on  constitutionali- 
ty of  statute,  see  Constitutionai,  Law, 
24,  25. 

1.  Legislative  power  to  create. — The  legis- 
lature has  no  authority  to  create  a  city 
court,  even  in  a  parish  ward  containing  a 
city  of  more  than  5,000  inhabitants,  except 
in  the  place  and  stead  of  the  justice  of  the 
peace  court,  which  shall  be  thereby  abolished. 
Therefore  section  40  of  Act  No.  2  of  1916, 
attempting  to  create  the  city  court  of  the 
city  of  Gretna  with  jurisdiction  concurrent 
with  that  of  the  justice  of  the  peace  for  a 
period  of  four  years,  violates  articles  84  and 
96  of  the  constitution.  Gretna  v.  Bailey 
(La.)   1918E-566. 

2.  Jurisdiction — Rights  under  patent. — ^As- 
suming that  a  bill  to  enforce  a  price  main- 
tenance contract'  asserted  rights  under  the 
patent  law,  a  federal  district  court  had  juris- 
diction to  determine  whether  the  suit  arose 
under  such  law,  where  the  question  had  not 
then  been  conclusively  settled  in  the  negative. 
Boston  Store  v.  American  Graphophone  Co. 
(U.  S.)  19180-447. 

3.  Rules  of  practice.— Under  P.  S.  1346, 
providing  that  superior  judges  shall  make 
all  necessary  rules  for  practice  in  county  and 
chancery  courts,  which  shall  be  uniform,  a 
rule  made  by  the  superior  judges  has  the 
force  of  law,  and  must  be  applied  to  all 
cases  coming  within  it.  Davis  v.  Dunn  (Vt.) 
1918D-994. 

4.  A  rule  of  a  county  court  as  to  practice 
does  not  govern  in  the  face  of  a  general  rule 


made  by  the  superior  judges.    Davis  v.  Dunn 
(Vt.)  1918D-994. 

5.  Federal  decision  binding  state  couit. — 
The  construction  of  a  federal  statute  is  for 
the  federal  courts,  and  the  state  court  must 
follow  the  rule  which  they  announce.  State 
V.  Hyde  (Ore.)  1918E-688. 

6.  Decision  of  state  court. — On  a  question 
of  general  law  involved  in  an  admiralty  suit 
brought  in  the  federal  district  court  for  New 
York,  the  decisions  of  the  highest  state  court 
are  not  binding.  Aktieselskabet  Korn-og  etc. 
V.  Rederiakuebolaget   (U.  S.)    1918E-491. 

7.  Decision  of  higher  court  in  lower — ^Pre- 
vious decision  explained. — The  decisions  in 
Southern  Ry.  Co.  v.  Covenia,  100  Ga.  46,  29 
S.  E.  219,  40  L.R.A.  253,  62  Am.  St.  Rep. 
312,  and  Atlanta  Consolidated  St.  Ry.  Co. 
V.  Arnold,  100  Ga.  566,  28  S.  E.  224,  rend- 
ered by  a  majority  of  the  supreme  court, 
were  not  in  terms  modified  by  the  riJing  in 
James  v.  Central  of  Georgia  Ry.  Co.  138  Ga. 
415,  75  S.  E.  431,  41  L.R.A.(N.S.)  795, 
Ann.  Cas.  1913D  468;  nor  was  there  such 
necessary  inconsistency  between  the  two 
former  rulings  and  that  last  mentioned  that 
they  were  by  force  thereof  modified,  but  they 
remain  as  decisions  of  a  majority  of  the 
supreme  court,  and  therefore  as  precedents 
to  be  followed  by  the  court  of  appeals. 
Holmes  v.  Southern  R.  Co.  (Ga.)  1918I>-11«2. 

8.  Dictum. — The  expression  of  opinion  up- 
on a  point  in  a  case  deliberately  passed  upon 
by  the  court  should  be  held  as  judicial  dictum 
rather  than  mere  obiter.  Scovill  »AIfg.  Co.  v. 
Cassidy  (HI.)   1918E-602. 


COVENANTS. 

See  Deeds,  8-12, 

Covenant  by  tenant  to  insure,  see  Landlotd 
AND  Tenant,  3. 


CBSDIT  INSURANCE. 

See  iNSxmANCE,  45-47. 


CRIMES. 

See  Ceiminal  Law. 

Charging  commission  of  crime  as  libel,  see 
Libel  and  Slandeb,  5. 


CRIMINAI.    liAW. 

1.  Criminal  Statutes,  75. 

2.  Parties  to  Crime,  75. 

3.  Rights  of  Accused: 

a.  Right    to    Counsel    before    Pleading, 

75. 

b.  Eight  to  Be  Present  at  Trial,  75. 

4.  Election   between   Counts,  75. 

5.  Waiver  of  Indictment  and  Jury,  75. 

6.  Admissibility  and  SuflSciency  of  Evidence, 

75. 


CRIMINAL  LAW. 


76 


See  Assault;  Bail:  Conspiracy;  Dying 
Declabations ;  Former  Jeopardy;  Hom- 
icide; Intoxicating  Liquobs;  Seduc- 
tion. 

Capacity  of  infant  to  commit  crime,  see  In- 
fants, 7. 

Continuance,   see   Tbial,   I. 

Crimes  incidental  to  operation  of  automo- 
biles, see  Automobiles,  25,  26. 

Cross  examination  of  accused,  see  Witnesses, 
11. 

Injunction  against  prosecution  of  criminal 
suits,  see  Injunctions,  10-13,  18. 

Leading  questions,  see  Witnesses,  8. 

Order  of  proof,  see  Trial,  2. 

Remarks  of  judge,  see  Trial,  6. 

Verdict  in  criminal  cases,  see  Vebdict,  2-4, 
6,  7. 

1.  Criminal  Statutes. 

1.  Effect  of  subsequent  abrogation  of  law. 
— One  charged  with  Aiolation  of  Local  Op- 
tion Law  (Laws  1907,  p.  297)  and  with 
previous  conviction  under  the  same  act  can- 
not plead,  regarding  former  conviction,  that 
during  a  period  between  that  conviction  and 
the  alleged  offense  the  law  was  not  in  force 
in  that  territory,  since  the  vote  did  not  re- 
peal the  law,  and,  if  it  did,  such  repeal  would 
not  be  a  remission  under  Rev.  St.  1874,  c. 
131,  §  4,  providing  that  no  new  law  shall  be 
construed  to  repeal  a  former  one  as  to  an  of- 
fense committed  or  penalty  or  punishment 
incurred  under  the  former  law.  People  v. 
Brown   (111.)   1918D-772. 

2.  Parties  to  Crime. 

2.  Accomplices. — ^A  witness,  who  testified 
that,  after  accused  struck  deceased  with  an 
iron  bar,  he  himself  stabbed  him,  is  an  ac- 
complice.   McCue  V.  State  (Tex.)  1918C-674. 

3.  Rights  of  Accused, 
a.  Right  to  Counsel  before  Pleading. 

3.  A  person  accused  of  crime  is  not  en- 
titled to  the  benefit  of  counsel  to  advise  him 
as  to  whether  or  not  he  shall  confess,  but 
only  for  defense,  and  when  the  record  in  a 
criminal  case  does  not  disclose  whether  the 
defendant  was  of  ability  to  procure  counsel 
or  whether  he  requested  that  counsel  be  as- 
signed to  him,  it  will  be  assumed  that  he 
failed  to  invoke  the  privilege.  State  v.  Hever 
(X.  J.)  1918D-284.  (Annotated) 

b.  Right  to  Be  Present  at  Trial. 

4.  If  defendant  in  a  criminal  case  volun- 
tarily absents  himself  from  the  courtroom 
during  the  trial,  it  is  the  duty  of  accused  or 
his  counsel  to  inform  the  court  of  his  ab- 
sence, so  that  the  court  may  then  correct 
the  situation.  Thomas  v.  State  (Miss.) 
1018E-371.  (Annotated) 

5.  Waiver. — There  is  no  difference  in  value 
or  sacredness  of  accused's  right  to  be  present 
on  the  trial,  whether  it  is  granted  by  consti- 
tution, statute,  or  common  law,  and  it  may 
be  waived  in  anv  event.  Thomas  v.  State 
(Miss.)   1918E-371.  (Annotated) 


6.  Code  1906,  §  1495  (Hemingway's  Code, 
§  1253),  authorizing  accused  to  waive  right 
to  be  present  at  any  stage  of  trial  at  the  dis- 
cretion of  the  court,  if  he  is  in  custody  and 
consents,  does  not  violate  Const.  1890,  §  26, 
giving  the  accused  a  right  to  be  heard,  and  is 
valid.     Thomas  v.  State   (Miss.)  1918E-  371. 

(Annotated) 

7.  Such  statute  merely  gives  the  accused 
an  additional  privilege  of  waiving  presence. 
Thomas  v.  State  (Miss.)  1918E-371. 

(Annotated) 

8.  fnder  such  statute,  the  accused  may 
waive  presence,  even  in  a  capital  case. 
Thomas  v.  State   (Miss.)   1918E-371. 

(Annotated) 

9.  Since  such  statute  provides  that  waiver 
shall  be  at  the  discretion  of  the  court,  if  it 
appears  that  the  accused  did  not  receive  a 
fair  and  impartial  trial,  a  new  trial  will  be 
gianted,  although  failure  to  secure  a  fair 
and  impartial  trial  was  on  account  of  ac- 
cused's waiver  of  presence.  Thomas  v.  Stat© 
(Miss.)    1918E-371.  (Annotated) 

10.  Under  such  statute,  where  one  accused 
of  murder  goes  from  the  courtroom  without 
the  knowledge  of  the  judge  or  the  attorneys, 
but  in  custody  of  an  oflScer,  for  a  few  min- 
utes, and  makes  no  objection  at  any  time 
to  the  progress  of  the  trial  in  his  absence, 
he  waives  his  presence.  Thomas  v.  State 
(Miss.)    1918E-371.  (Annotated) 

11.  Reception  of  verdict. — A  verdict  in 
a  prosecution  for  violation  of  the  Local  Op- 
tion Law  may- be  rendered  in  the  absence  of 
accused  and  his  attorney.  People  v.  Brown 
(HI.)    1918D-772. 

4.  Election  between  Counts. 

12.  An  unlawful  act  relied  on  by  the  state 
as  the  basis  for  the  charge  of  manslaughter 
may  be  made  unlawful  by  more  than  one 
statute.  In  such  case  it  is  error  to  compel 
the  state  to  elect  upon  which  statute  it  re- 
lies for  a  conviction.  State  v.  Schaeffer 
(Ohio)    1918E-1137. 

5.  Waiver  of  Indictment  and  Jury. 

13.  Order  for  trial. — When  a  person  who  is 
charged  with  an  offense  triable  before  the 
court  of  quarter  sessions  waives  indictment 
and  trial  by  jury  and  requests  to  be  tried 
immediately  before  the  court,  it  is  not  neces- 
sary for  the  judge  to  sign  an  order  in  writ- 
ing for  the  trial  of  the  accused.  State  v. 
Heyer  (X.  J.)  1918D-284. 

6.  Admissibility  and  Su£Sciency  of  Evidence. 

14.  Rebutting  proof  of  alibi. — Where  the 
defense  of  alibi  was  that  accused  spent  the 
entire  day  and  night  of  the  killing  in  his 
father's  home,  testimony  that  a  witness 
heard  accused  on  the  night  of  the  crime  while 
he  was  in  another  room  of  an  immoral  re- 
sort is  admissible.  McCue  v.  State  (Tex.) 
1918C-674. 

15.  Where  accused  offered  evidence  to  show 
that  he  was  at  home  on  the  day  and  night 
of  the  killing,  testimony  that  accused  was 
seen  drinking  with  deceased  on  the  evening 


76 


ANK  CAS.  DIGEST  (1918C-1918E). 


of  the  murder  is  admissible.    McCue  v.  State 
(Tex.)    1918C-674. 

16.  Testimony  that  a  witness  saw  accused 
downtown  on  the  afternoon  of  the  murder 
and  saw  him  later  that  evening  is  also  ad- 
missible.    McCue  V.  State   (Tex.)   1918C-674, 

17.  Where  accused  claims  that  he  spent  the 
entire  day  and  night  of  the  killing  in  his 
father's  home,  testimony  in  support  of  an 
accomplice,  who  claimed  to  have  met  accused 
in  an  immoral  resort,  that  on  the  night  of 
the  killing  the  accomplice  and  accused  visited 
the  resort,  where  they  removed  their  blood- 
stained clothing  and  spent  the  rest  of  the 
night  smoking  hop.  is  admissible.  McCue 
v.  State   (Tex.)    19180-674. 

18.  Where  accused  claims  that  on  the  day 
of  the  killing  he  had  remained  in  his  father's 
house,  and  there  was  evidence  tending  to 
show  that  he  had  spent  that  night  in  an 
immoral  resort,  testimony  that,  some  days 
after,  he  i«rs  arrested  when  leaving  such 
resort,  is  admissible.  McCue  v.  State  (Tex.) 
1918C-674. 

19.  Where  accused  claims  to  have  been  in 
his  father's  house  on  the  day  and  evening 
of  the  homicide,  testimony  that  a  witness 
saw  him  on  the  afternoon  of  the  killing  in 
a  saloon  drinking  with  another  person  is  ad- 
missible.    McCue  V.  State  (Tex.)  1918C-674. 

20.  Testimony  that  the  companion  of  a 
former  witness  saw  two  men  drinking  as  de- 
tailed by  such  witness,  though  he  did  not 
know  and  could  not  recognize  accused,  as 
the  other  witness  had,  is'  admissible  in  cor- 
roboration. McCue  V.  State  (Tex.)  1918C- 
674. 

21.  Evidence  incidentally  discrediting  ac- 
cused.— In  a  prosecution  for  homicide,  the 
fact  that  evidence  of  accused's  visits  to  sa- 
loons and  the  lowest  of  dives  may  necessarily 
have  a  prejudicial  eflfect  does  not  render  such 
testimony  inadmissible,  where  it  is  vitally 
connected  with  the  evidence  to  show  accused's 
guilt.     McCue  V.  State  (Tex.)   1918C-674. 

CROPS. 

Value  of  growing  crops  as  included  in  dam- 
ages for  taking  of  land,  see  Eminent 
Domain,  8, 12. 


CROSS-EXAMINATION. 

See  Witnesses,  10,  11. 


CROSSINGS. 

Liability  for  injuries  to  persons  at  railroad 
crossings,   see  Railboads,   14-20. 

Liability  of  owner  of  automobile  for  injury 
at  railroad  crossing  to  person  riding  in 
automobile,  see  Automobiles,  16,  17. 

Negligence  of  railroad  as  excusing  negligence 
of  street  railroad  for  injury  to  passen- 
ger of  latter,  see  Cabbiebs  of  Passen- 
OEBS,    9. 

Width  to  be  maintained  at  railroad  crossings, 
see  Railboads,  5. 


CUMULATIVE  EVIDENCE. 

Newly  discovered  evidence  of  cumulative 
nature  as  ground  for  new  trial,  see  New 
Tbial,  3,  4. 


CURRENCY  ACT. 

See  Banks  and  Bankutg,  1-3. 

CUSTOMER. 

Injury  by  fall  down  elevator  shaft,  see  Ele- 
VATOBS,   2,   6. 

DAMAGES. 

See  Agency,  10;  Convebsion,  5;  Death  bt 
Wbongful  Act,  20,  21. 

For  refusal  of  seller  to  deliver  goods,  see 
Sales,  6. 

For  wrongful  issuance  of  injunction,  see  In- 
junctions, 21. 

In  actions  against  carriers  of  goods,  see  Cab- 
BiEES  OF  Goods,  20-25. 

In  aations,  for  delay  in  delivery  or  failure  to 
deliver  telegraph  messages,  see  Tele- 
GBAPHS  and  Telephones,  4,  7-9. 

In  actions  for  libel  or  slander,  see  Libel  and 
Slandeb,  65-70. 

Instruction  as  to  mitigation  of  damages  in 
action  for  libel,  see  Libel  and  Slandeb, 
63,  64. 

Measure  of  damages  for  breach  of  warranty 
of  germination  of  seeds,  see  Waebanty, 
4. 

On  breach  of  automobile  sales  agency  con- 
tract, see  Damages,  10. 

Review  of  question  of  damages,  see  Appeal 
and  Ebbob,  48,  56,  57. 

1.  Mitigation  of  damages. — In  an  action 
for  personal  injury,  the  defendant  cannot 
show,  either  as  a  bar  to  the  action  or  in 
reduction  to  the  damages,  that  the  injured 
person  received,  or  was  entitled  to  receive, 
compensation  for  his  injury  in  form  of  insur- 
ance or  otherwise.  Ridgeway  v.  Sayre 
Electric  Co.   (Pa.)   1918D-1. 

2.  Elements — Humiliation  from  disfigure- 
ment.— Humiliation  or  mortification  to  arise 
in  the  future  on  account  of  disfigurement  of 
person  is  a  proper  element  of  damage  in  an 
action  for  personal  injury.  Patterson  v. 
Blatti    (Minn.)    1918D-63.  (Annotated) 

3.  Measure  of  damages — Action  for  tort. — 
This  court  has  committed  itself  to  the  doc- 
trine that  the  rules  governing  the  assess- 
ment of  damages  are  the  same  in  tort  as  in 
contract,  except  where  a  tort  is  committed 
under  such  circumstances  as  to  warrant  the 
allowance  of  exem'plary  damages.  Florida 
East  Coast  R.  Co.  v.  Peters  (Fla.)  1918D-121. 

4.  Evidence. — In  suit  for  damages  for  mis- 
representing the  acreage  of  land  leased,  it 
is  error  to  exclude  from  the  considei-ation 
of  the  jury  evidence  of  items  of  damage  suf- 
fered by  plaintiffs  making  up  the  necessary 
and    reasonable    expenditures     incurred    by 


DEAD  BODY— DEATH  BY  WRONGFUL  ACT. 


77 


them  in  preparing  to  cultivate  the  land,  since 
the  jury  should  have  such  information, 
coupled  with  other  proof,  as  will  enable  them 
to  determine  the  extent  of  .the  damage,  if 
they  find  certain  facts  favorably  to  plaintiff. 
McXeer  v.  Xorfleet  (Miss.)  1918E-436. 

6.  Duty  to  permit  remittitur. — ^Under  Ver- 
non's Sayles'  Ann,  Civ.  St.  1914,  art.  1631, 
providing  that  it  shall  be  the  duty  of  a 
court  of  civil  appeals,  when  of  opinion  that 
the  verdict  is  excessive,  to  indicate  to  the 
party  in  whose  favor  the  judgment  was  ren- 
dered, or  his  attorneys  of  record,  the  amount 
of  excess  and  the  time  within  which  he  may 
file  a  remittitur,  whereupon  the  court  shall 
reform  and  affirm  the  judgment,  in  an  action 
against  the  receiver  of  a  railroad  for  per- 
sonal injuries,  the  court  of  civil  appeals 
.should  not  reverse  and  remand  the  case  upon 
the  ground  alone  that  the  verdict  is  exces- 
sive; the  statute  being  mandatory  and  re- 
quiring the  court  to  authorize  remittitur  of 
the  verdict  above  the  amovmt  which  will  be 
reasonable  compensation  for  the  injury  in 
accordance  with  its  sound  judgment.  Wilson 
V.  Freeman   (Tex.)   1918D-1203. 

6.  Where  a  verdict  in  an  action  for  slander 
is  80  excessive  as  to  clearly  indicate  passion 
or  prejudice  of  the  jury,  a  new  trial  will  be 
ordered,  rather  than  to  order  a  remittitur. 
Cain  V.  Osier   (la.)   1918C-1126. 

7.  Excessiveness  of  verdict. — In  a  collision 
between  a  railroad  train  and  an  automobile, 
a  married  woman,  twenty-eight  years  old, 
sustained  a  scalp  wound  and  a  fractured 
pelvis,  also  a  nervous  shock  or  collapse  with 
its  attendant  ills,  which  still  remained  with 
her.  Sh<?  was  suffering  from  a  retroverted 
uterus,  and  seven  months  after  the  collision 
had  a  miscarriage  when  three  months  in 
pregnancy,  and  there  was  evidence  that  she 
could  never  have  a  child  because  of  the 
pelvic  break.  Her  suffering  was  intense  and 
her  injuries  in  a  degree  permanent.  It  is 
held  that  a  verdict  for  $5,250,  thoiigh  large, 
was  not  excessive.  Avery  v.  Thompson  (Me.) 
1918E-1122. 

8.  Twelve  hundred  and  fifty  dollars  is  not 
an  excessive  verdict  in  an  assault  and  battery 
case,  where  the  injury  caused  a  permanent 
shortening  and  stiffening  of  the  thumb  and 
there  was  evidence  to  show  expense  and  loss 
of  time  aggregating  $350.  Patterson  v. 
Blatti  (Minn.)   1918D-63. 

9.  A  verdict  of  $6,500  for  death  of  father 
supporting  a  family  of  ten  was  not  excessive, 
although  deceased  was  fifty-seven  years  of 
age,  had  one  leg  off  six  inches  below  the 
knee,  and  one  arm  was  smaller  than  the 
other.     Hays  v.  Hogan  (Mo.)   1918E-1127. 

10.  Verdict  of  $25,000  to  widow  and  four 
minor  children  of  healthy  man  with  expect- 
ancy of  twenty-four  and  one-half  years,  who 
earned  $1,800  per  year,  and  who  suffered 
severely  for  twenty  hours  after  fall  into 
elevator  shaft  in  store,  was  not  excessive. 
Kress  v.  Markline   (Miss.)   1918E-310. 

DEAD  BODY. 

Removal  from  grave  or  cemetery,  see  Ceme- 
teries, 3,  4. 


DEATH. 

See  Death  bt  Wbongful  Act;  Dying  Dec- 

LABATIOXS. 

Creating    presumption    of    survivorship    by 

will,  see  Wills,  39,  40,  48. 
Effect  of  presumption  of  death  in  action  on 

life    insirrance   policy,    see    Life    Insub- 

A>-CE,  17. 

Proof   of  death  of  insured,   see  Beneficial 

Associations,   21. 
Waiver    of    proof    of    death   of   insured,    see 

Life  Insubaxce,  10,  11, 

1.  Evidence  that  the  insured  left  his  home 
eight  years  before  the  suit  on  a  policy  of  mu- 
tual benefit  insurance  on  his  life,  that  there 
has  been  no  trace  of  or  word  from  him  since 
that  time,  and  that  his  whereabouts  is  un- 
known, raises  the  legal  presumption  in  that 
suit  that  he  is  dead,  proof  that  search  has 
been  made  for  the  absentee  not  being  neces- 
sary. Page  V.  Modem  Woodmen  of  America 
(Wis.)    1918D-758.  (Annotated) 


DEATH   BT   WRONGFUL  ACT. 

1.  Limitation  of  Action,  77. 

2.  Who  May  Sue,  78. 

3.  Actions: 

a.  Defenses,  78. 

b.  Evidence,   78. 

c.  Instructions,   79. 

d.  Questions  for  Jury,   79. 

4.  Measure  of  Damages,  79. 

See  Death. 

Action  against  husband  for  wrongful  death 
of  wife,  see  Husband  anb  Wife,  17. 

Liability  of  owner  of  boat  livery  for  death 
of  patron  caused  by  sinking  of  boat,  see 
Theaters  and  AiiusEiiENTS,  2,  3, 

Statute  making  railroad  liable  for  fires  start- 
ed by  engine  as  authorizing  recovery  for 
death  resulting  from  fire  started  by  en- 
gine:, see  Bailroads,  21, 

1.  Limitation  of  Action. 

1.  Laws  1898,  c.  65,  providing  relative  to 
actions  for  wrongful  death  that  such  action 
shall  be  commenced  within  one  year  after  the 
death,  contains  no  saving  clause  in  favor  of 
any  person,  and  the  court  cannot  ingraft 
any  such  exception  upon  it.  Gulf,  etc'  R.  Co.  < 
V.  Bradley   (Miss.)   1918D-554. 

2.  Effect  of  repeal  of  limit  after  bar  at- 
tached.—Const.  1890,  §  97,  provides  that  the 
legislature  shall  have  no  power  to  revive  any 
remedy  which  may  have  become  barred  by 
lapse  of  time  or  by  any  statute  of  limitation. 
Laws  1898,  c.  65,  required  actions  for  wrong- 
ful death  to  be  commenced  within  one  year 
after  the  death.  This  statute  was  amended 
by  Laws  1908,  c.  167,  by  eliminating  such 
limitation.  It  is  held  that,  even  disregarding 
the  constitutional  provision,  the  Act  of  1908 
did  not  authorize  the  bringing  in  1913  of  an 
action  for  a  death  occurring  in  1902.  as  the 
limitation  contained  in  the  Law  of  1898  was 
not  merely  a  limitation  of  the  remedy,  but 


ANN.  CAS.  DIGEST  (1918C-1918E). 


of  the  liability  itself.     Gulf,  etc.  R.  Co.  v, 
Bradley  (Miss.)  1918C-554. 

3.  A  declaration  alleged  tliat  in  August, 
1902,  plaintiff's  father,  while  in  defendant's 
employ,  was  killed  by  reason  of  the  negli- 
gence of  other  employees  under  circumstances 
rendering  defendant  liable;  that  plaintiff 
was  born  in  February,  1903;  that  on  Septem- 
ber 30,  1902,  suit  was  filed  by  plaintiff's 
mother  in  lier  own  behalf  and  on  behalf  of 
another  child  then  living  to  recover  for 
the  injury  sustained  by  such  death;  that 
on  the  same  day  a  final  judgment  was  ren- 
dered in  favor  of  the  mother  and  such  child 
in  settlement  of  such  injuries;  and  that 
thereafter  and  before  plaintiff's  birth  such 
judgment  was  paid.  It  is  held  that  tliis 
predicated  the  right  of  action  upon  the  cause 
of  action  for  the  death,  and  not  upon  an 
agreed  settlement  not  fully  performed;  and 
hence  the  requirement  of  Laws  1898,  c.  65, 
that  actions  for  w-rongful  death  shall  be  com- 
menced within  one  year  applied.  Gulf,  etc. 
R.  Co.  V.  Bradley   (Miss.)   1918D-554. 

2.  Who  May  Sue, 

4.  Where  a  railroad  servant,  killed  in  in- 
terstate commerce,  leaves  surviving  him  a 
widow  or  a  child  or  children,  the  action 
against  the  road  for  his  death,  under  the 
federal  employers'  liability  act,  must  be 
maintained  exclusively  for  their  benefit,  to 
the  exclusion  of  other  classes  of  beneficiaries 
named  in  the  act,  such  as  the  employee's 
parents.  Davis  v.  Cincinnati,  etc.  R.  Co.  (Ky.) 
1918E-414. 

5.  Divorced  wife  suing  for  death  of  child. — 
The  mother  and  administratrix  of  decedent 
Tnay  maintain  action  for  his  death,  where  it 
appears  that  she  and  her  husband  had  been 
divorced,  she  being  remarried,  that  the  father 
is  alive,  that  the  decedent  has  never  lived 
with  him,  contributed  to  his  support,  nor  been 
piaintained  by  him,  but  gave  all  his  earn- 
ings to  her.  'Clarks  v.  Detroit,  etc.  R.  Co. 
(Mich.)  1918E-1068. 

6.  Recovery  for  death  of  adopted  child. — 
Under  Rev.  Laws,  c.  154,  §  6,  authorizing 
the  probate  court  to  make  decrees  for  adop- 
tion, by  which,  except  as  regards  succession 
to  property,  all  rights,  duties,  and  other 
legal  consequences  of  the  natural  relation  of 
child  and  parent  shall  thereafter  exist  be- 
tween the  child  and  the  petitioner  and  his 
kindred,  and  shall,  except  as  regards  mar- 
riage,  incest,  or  cohabitation,  terminate  be- 
tween the  child  so  adopted  and  his  natural 
parents  and  kindred,  or  any  previous  adopting 
kindred,  the  right  of  an  adopting  parent  to 
recover  for  death  of  the  child  as  administra- 
tor or  administratrix  under  Rev.  Laws,  c.  171, 
§  2,  as  amended  by  St.  1907,  c.  375,  and  under 
Rev.  Laws,  c.  51,  §  17,  and  acts  in  amend- 
ment, is  the  same  as  that  of  a  natural  par- 
ent in  the  absence  of  adoption,  the  intent  of 
the  statute  being  to  put  an  adopted  child  for 
all  legal  purposes,  with  certain  exceptions,  in 
the  place  of  a  natural  child,  "succession  to 
property"  meaning  succession  under  the  laws 
regulating  the  descent  and  distribution  of  in- 


testate property.    Boutlier  v.  Maiden  (Mass.) 
19180-910. 

7.  Parent  having  no  pecuniary  expectations 
from  child. — WJiere  a  railroad  fireman,  after 
his  divorce,  carried  his  trunk  to  his  parents' 
home,  making  that  his  headquarters,  but  be- 
ing there  only  at  infrequent  intervals  or  for 
short  times,  when  he  would  donate  to  his 
mother  small  sums,  trifling  in  amount,  rather 
as  a  result  of  affection  than  in  recognition 
of  an}-  obligation  to  her  in  the  way  of  sup- 
port and  maintenance,  she  being  supplied 
with  the  necessities  of  life  through  her  hus- 
band and  other  children,  such  mother  has  no 
pecuniary  expectations  from  her  son,  entit- 
ling her  to  recover  for  his  death  under  the 
federal  employers'  liability  act.  Davis  v. 
Cincinnati,  etc.  R.  Co.    (Ky.)    1918E^14. 

3.  Actions. 

a.  Defenses. 

8.  Prior  recovery  by  widow  as  barring 
rights  of  posthumous  child. — Under  Laws 
1898,  c.  65,  providing,  relative  to  actions  for 
wrongful  death,  that  there  shall  be  but  one 
suit  for  the  same  death,  which  shall  inure  to 
the  benefit  of  all  parties  concerned,  it  was 
immaterial  that  a  child  of  deceased  was  not 
born  when  a  suit  by  her  mother  was  insti- 
tuted, as  the  limitation  on  the  number  of 
suits  is  without  exception  in  favor  of  any 
person  whatever.  Gulf,  etc.  R.  Co.  v.  Brad- 
ley   (Miss.)    1918D-554.  (Annotated) 

9.  A  declaration  in  an  action  by  a  post- 
humous child  for  wrongful  death  alleged  that 
a  suit  was  filed  by  deceased's  wife  in  her  own 
behalf  and  on  behalf  of  another  child  to  re- 
cover for  the  death;  that  on  the  same  day 
a  final  judgment  was  rendered  in  her  favor 
for  $2,500;  and  that  thereafter,  and  before 
plaintiff's  birth,  the  judgment  was  paid.  It 
is  held  that,  conceding  that  such  judgment 
would  not  bar  a  suit  by  plaintiff  unless  it 
was  rendered  in  good  faith  and  without  col- 
lusion, there  was  nothing  in  the  declaration 
to  indicate  collusion  in  the  rendition  of  the 
judgment,  as  the  mere  fact  that  it  was  ren- 
dered on  the  same  day  the  declaration  was 
filed  was  insufficient  for  that  purpose,  and, 
for  all  that  appeared,  .$2,500  may  have  been 
full  compensation  for  the  injury.  Gulf,  etc. 
R.  Co.  V.  Bradley  (Miss.)   1918D-554. 

(Annotated) 

b.  Evidence. 

10.  Presumptions  and  burden  of  proof. — 
In  an  action  for  damages  for  death  of  plain- 
tiff's intestate,  caused  by  sinking  of  boat 
hired  of  defendant,  in  which  he.  with  three 
companions,  had  gone  rowing;,  where  there  is 
no  eyewitness  to  accident,  presumption  that 
those  on  board  exercised  due  care  is  indulged 
only  to  relieve  plaintiff  from  inference  of  neg- 
ligence, and  not  to  supply  evidence  of  defend- 
ant's negligence.  Clark  v.  Detroit,  etc.  R. 
Co.    (Mich.)    1918E-1068. 

11.  In  an  administratrix's  action  for  death 
of  her  adopted  son  by  electric  shock  from  a 
broken  wire,  the  burden  is  on  plaintiff  af- 
firmatively to  show  due  care  on  the  boy's 


DEBTOR  AND  CREDITOK. 


79 


part  in  order  to  recover;  the  presumption 
created  by  St.  1914,  e.  553,  not  applying 
where  the  cause  of  action  occurred  before  the 
statute  went  into  effect.  Boutlier  v.  ilalden 
(Mass.)    19180-910, 

12.  Financial  circomstances  of  widow. — 
In  action  for  death  of  customer  by  falling 
down  elevator  shaft  in  store,  testimony  of 
the  widow  that  her  home  has  not  been  paid 
for  is  inadmissible.  Kress  v.  Markline 
(]\Iiss.)   1918E-310. 

13.  Admission  of  such  testimony  is  harm- 
less error,  since  the  jury  could  not  have  been 
misled  thereby.  Kress  v.  Markline  (Miss.) 
1918E-310. 

14.  Insurance  on  life  of  deceased. — ^In  ac- 
tion for  death  of  customer  by  falling  down 
elevator  shaft  in  store,  testimony  as  to 
amount  of  life  insurance  left  by  deceased  is 
properly  excluded.  Kress  v.  Markline  (Miss.) 
1918E-310. 

15.  Judgment  in  divorce  suit  against  de- 
ceased.— In  an  action  against  a  railroad,  un- 
der the  federal  employers'  liability  act  (Act 
Cong.  April  22.  1908.  c.  149,  35  Stat.  65 
[6  Fed.  St.  Ann.  2d  ed.  280]),  for  death  of 
its  fireman,  it  was  error  for  the  court  to 
permit  defendant  to  introduce  in  evidence, 
and  to  read  to  the  jury  on  trial  over  plain- 
tifl'.s  objection,  judgment  in  a  divorce  suit 
against  decedent,  ordering  him  to  pay  his 
divorced  wife  $300  for  the  support  of  their 
minor  child,  since  the  child,  as  a  dependent, 
is  entitled  to  recover  the  pecuniary  benefits 
which  it  had  the  right  to  expect  from  its 
father,  who  was  under  a  legal  obligation  to 
support  it  during  its  infancy,  which  benefits 
cannot  be  augmented  or  diminished  by  a  col- 
lateral proceeding  to  which  the  child  was  not 
a  partv.  Davis  v.  Cincinnati,  etc.  R.  Co. 
(Ky.)    i918E-414.  (Annotated) 

16.  Sufficiency  of  evidence. — The  evidence 
is  held  to  be  sufficient  to  warrant  finding  that 
the  boy's  death  was  preceded  by  conscious 
suffering.  Boutlier  v.  Maiden  (Mass.)  1918C- 
910. 

c.  Instructions. 

17.  Submission  of  issue  without  evidence. — 
In  an  action  against  a  railroad,  under  the 
federal  employers'  liability  act,  for  death  of 
its  fireman  when  his  train  was  derailed  in 
taking  a  curve,  where  there  was  absolutely 
no  proof  of  any  facts  or  circumstances  look- 
ing to  the  establishment  of  any  contributory 
negligence  on  decedent's  part,  the  giving  of 
an  instruction  on  the  question  of  contribu- 
tory negligence,  allowing  the  jur.y  to  dimin- 
ish damages  therefor,  is  prejudicial  error, 
since  from  it  the  jury  might  conclude  that 
the  court  saw  something  in  the  evidence 
justifying  the  instruction,  in  view  of  the  close 
relation  between  the  fireman  and  the  engineer 
driving  the  train.  Davis  v.  Cincinnati,  etc. 
Pv.  Co.   (Ky.)   1918E-414. 

d.  Questions  for  Jury. 

18.  Expectancy  from  father. — In  an  action 
against  a  railroad,  under  the  federal  em- 
ployers'   liability    act,    for   the    death    of    a 


fireman,  brought  for  the  benefit  of  his  in- 
fant daughter,  tlie  court  should  not  submit 
the  question  whether  the  child  had  the  right 
to  expect  pecuniary  assistance  from  her 
father  had  he  lived,  since  the  law  gave  her 
such  right,  imposing  on  her  father  the  duty 
of  complying  with  it.  Davis  v.  Cincinnati, 
etc.  R.  Co.  (Ky.)  1918E>-414. 

19.  Rendition  of  services  by  child. — ^Where 
in  a  suit  by  a  parent  for  damages  on  account 
of  loss  of  services  of  a  child  two  years  and 
four  months  old,  alleged  to  have  been  negli- 
gently killed  by  a  railway  train,  it  was  al- 
leged that  the  child  was  precocious,  strong, 
robust,  and  endowed  with  unusual  physical 
powers  for  a  child  of  her  age,  that  she  ran 
on  errands,  helped  bring  in  wood,  swept  the 
house,  helped  to  attend  to  plaintifTs  younger 
child,  and  generally  waited  on  plaintiff  and 
helped  in  the  household  work,  and  contrib- 
uted to  the  support  of  plaintiff,  and  that 
the  latter  was  dependent  upon  her,  and  that 
the  value  of  the  child's  services  was  $3  per 
month,  to  which  petition  a  demurrer  was 
filed, — if  considered  as  an  original  proposi- 
tion, the  members  of  this  court  are  equally 
divided  in  opinion  as  to  whether  a  court  can 
judicially  know  that  the  facts  thus  alleged 
are  as  a  matter  of  law  untrue,  because  so  un- 
reasonable as  to  be  legally  impossible.  Un- 
der this  division  of  opinion  the  decision  in 
Atlanta  Consolidated  St.  Ry.  Co.  v.  Arnold, 
supra,  stands  as  a  decision  of  a  majority  of 
this  court.  It  involved  a  child  alleged  to  be 
between  two  and  one-half  and  three  years 
of  age  (which  was '  construed  by  a  majority 
of  the  court,  in  the  case  of  James  v.  Central 
of  Ga.  Ry.  Co.  supra,  as  being  equivalent  to 
an  allegation  that  the  child  was  about  two 
and  one-half  years  old).  This  includes  the 
lesser  age  of  two  years  and  four  months. 
Holmes  v.  Southern  R.  Co.  (Ga.)  1918D-1182. 

(Annotated) 

4.  Measure  of  Damages. 

20.  Amount  of  recovery  by  child. — ^In  an 
action  against  a  railroad,  under  the  federal 
employers'  liability  act,  for  death  of  its  fire- 
man, brought  for  the  benefit  of  his  infant 
daughter,  the  sum  which  plaintiff  is  entitled 
to  recover  for  her  is  properly  limited  to  what 
she  had  reasonable  expectations  of  receiving 
from  her  father,  if  his  death  had  not  been 
occasioned.  Davis  v.  Cincinnati,  etc.  R.  Co. 
(Ky.)    1918E-414. 

21.  In  an  action  against  a  railroad  com- 
pany, under  the  federal  employers'  liabil- 
ity act,  for  death  of  its  fireman,  brought  for 
the  benefit  of  his  minor  daughter,  plaintiflF 
can  recover  for  the  child  only  the  actual 
pecuniary  loss  resulting  to  her,  and  not  for 
the  money  value  "of  that  care,  counsel,  train- 
ing, and  education"  which  she  might  have 
received  from  her  father  had  he  lived.  Davis 
v,  Cincinnati,  etc.  (Ky.)  1918E-414. 


DEBTOR  AND  CREDITOR. 

See  Fracdulent  Sales  and  Convetances. 


80 


ANK  CAS.  DIGEST  (1918C-1918E). 


DECEDENTS'    ESTATES. 

See  Executors  and  Administbatobs;  Wnxs. 

DECISION. 

Reason  for  decision  as  affecting  question  of 
error,  see  Appeal  and  Ebbob,  102,  103. 

DECUIRATION. 

See  PuBADiNG,  2-4. 

DECLARATIONS. 

See  Admissions  and  Dex^labations. 


DEEDS. 

1.  Requisites,  80. 

2.  Construction,  80. 

3.  Covenants  Running  with  Land  in  General, 

8]. 

4.  Covenants  of  Title,  81. 

5.  Recitals,  81. 

6.  Proceeding  to  Forfeit  Rights  under  Deed, 

81. 

See  Easements;  Mobtgages;  Recobdinq 
Acts;  Rescission,  Cancellation  and 
Refoemation;  Vendob  and  Pubchaseb, 

As  mortgage,   see  Mobtgage^s,   1-5. 

Deed  bj'  partner  as  contract  to  convey,  see 
Pabtnebship,  4. 

Effect  of  agent's  deed  as  contract  to  convey, 
see  Agency,  14. 

Formal  requisites  of  deed  from  wife  to  hus- 
band, see  Husband  and  Wife,  15,  16. 

Nature  of  title  granted  by  deed  of  partner- 
ship, see  Pabtnebship,  2. 

Parol  evidence  to  impeach  conveyance,  see 
Evidence,  33,  34. 

Parties  in  suit  to  cancel  deed,  see  Rescis- 
sion, Cancellation  and  Refoemation, 
11. 

Permissive  occupancy  by  grantor  as  affect- 
ing right  of  grantee  to  possession,  see 
Advebse  Possession,  1. 

Reformation  of  deed  as  against  bona  fide 
purchaser,  see  Vendob  and  Pubchaseb, 
18. 

Requisites  of  deed  executed  by  mortgagee 
under  power  of  sale  in  mortgage,  see 
Mobtgages,  12,  13. 

Retention  of  premises  by  grantor  as  ground, 
for  setting  aside  deed,  see  Rescission, 
Cancellation  and  Refobmation,  5. 

Right  to  revoke  deed  creating  trust,  see 
Tbusts  and  Tbustees.  40. 

Sufficiency  of  joinder  of  husband  to  wife's 
deed,  see  Husband  and  Wife,  3. 

Suit  to  cancel  grant  of  public  lands  by  state, 
see  Public  Lands,  10-21. 

Tax  deeds,  see  Taxation,  41,  42. 


1.  Requisites. 

1.  Effect  of  incompleteness  at  time  of  de- 
livery.— A  deed  passes  no  title  unless  de- 
livered in  a  complete  state  in  the  grantor's 
lifetime.    Butler  v.  Butler  (X.  C.)  1918E-038. 

2.  Description. — Deed  tendered  to  one  hav- 
ing an  option  on  a  block  separated  from  an- 
other by  a  party  wall  properly  fixes  the 
center  line  of  the  wall  as  the  boundary. 
Weadock  v.  Champe   (Mich.)    1918C-874. 

3.  An  ancient  deed,  referring  to  land  by 
its  entry  number,  in  accordance  with  the  cus- 
tom at  the  time  of  its  execution  to  refer  to 
the  entry  and  grant  numbers  in  describing 
the  land  conveyed,  is  a  sufficient  description 
of  the  land  conveyed,  as  the  clear  intention 
of  the  parties  should  be  made  effective,  when 
the  court  can  accomplish  it  by  recognizing 
the  legal  and  actual  connection  effected  be- 
tween the  entry  and  grant  by  the  issuance  of 
the  latter  upon  the  former.  Fielder  v,  Pem- 
berton  (Tenn.)  1918E-905. 

2.  Construction. 

4.  Deed  referring  to  another  instrument. — 

Where  a  timber  deed  refers  to  another  in- 
strument for  its  terms,  it  takes  both  instru- 
ments to  show  the  entire  contract.  Berrv  v. 
Marion  Countv  Lumber  Co.  (S.  C.)  1918E- 
877. 

5.  Habendum  construed  with  premises. — 
A  deed  made  pursuant  to  an  option  lumber 
contract  contained  two  habendum  clauses, 
which  read  "to  have  and  to  hold,  all  the 
short  straw,  poplar  and  cypress  on  the  said 
five  tracts  of  land  in  said  five  options  above 
described  and  named,  together  with  all  the 
rights  and  privileges,  members,  rights  and 
privileges  stipulated  in  said  option  to  be 
given  to  the  said  Cape  Fear  Lumber  Com- 
pany, their  successors  and  assigns."  "To 
have  and  to  hold  all  and  singular,  the  said 
premises  before  mentioned  unto  the  said 
Cape  Fear  Lumber  Company,  their  successors 
and  assigns  forever."  It  is  held,  that  as  the 
term  "premises"  is  used  as  embracing  all 
that  part  of  the  deed  which  jMecedes  the 
habendum  and  is  the  proper  technical  sense 
of  the  term  as  used  in  conveyances,  and  as 
the  deed  refers  to  the  option  contract  giving 
a  limited  time  within  which  to  cut  and  re- 
move the  timber,  a  second  habendum  clause 
conveyed  only  such  privileges  and  rights  as 
are  set  forth  in  the  option,  and  not  a  fee  in 
the  timber.  Berry  v.  Marion  Countv  Lumber 
Co.   (S.  C.)   1918E-877.  (Annotated) 

6.  Prior  accretions  to  land  described. — A 
deed,  convej'ing  by  metes  and  bounds  a  tract 
described  as  containing  175  acres  more  or 
less,  does  not  include  some  three  hundred 
acres  of  accretions  which  had  attached  to 
the  original  tract  before  convevance.  Hous- 
ton  V.   nrant    (Miss.)    1918E-243. 

(Annotated) 

7.  Effect  as  to  agreement  for  easement. — 
Where  persons  holding  a  contract  to  purchase 
land  from  a  railroad  company  enters  into  an 
agreement  with  the  company,  giving  it  the 
privilege  to  remove  gravel  from  the  premises, 
and  the  company's  deed,  thereafter  executed, 
conveying  the  land  to  the  purchasers,  makes 


DEFAMATION— DELIVERY. 


81 


no  mention  of  such  agreement,  the  company's 
right  to  remove  the  gravel  is  lost.  Simmons 
V.  Northern  Pac.  R.  Co.  (Wash.)  1918C-1184. 

3.  Covenants  Running  with  Land  in  General. 

8.  \Miether  a  covenant  runs  with  the  land 
or  is  merely  personal  depends  upon  whether 
it  concerns  the  use  and  occupation  of  the 
land  or  is  a  collateral  and  personal  covenant, 
not  immediately  concerning  the  thing  grant- 
ed, for  if  the  covenant  concerns  the  land  and 
enjoyment,  its  benefit  or  obligation  passes 
with  the  ownership.    Purvis  v.  Shuman  (111.) 

misD-iira. 

9.  Exemption  from  sidewalk  assessments. 
— Where  a  city,  in  consideration  of  an  own- 
er's setting  his  fence  back  twelve  feet,  con- 
tracts never  to  require  the  owners  of  the 
property  to  build  or  maintain  a  sidewalk, 
and  that  the  city  will  at  its  own  expense 
grade,  build,  and  forever  maintain  a  pave- 
ment for  the  street,  the  covenant  is  such  as 
runs  with  the  land.  Walker  v.  Richmond 
(Ky.)    1918E-1084. 

10.  Agreement  to  maintain  depot. — The 
covenant  of  a  railroad  company  with  a  land- 
owner, in  consideration  of  the  grant  of  a 
right  of  way  through  his  lands,  and  of  land 
for  depot  purposes,  to  build  and  operate  a 
depot  on  the  grantor's  land  is  one  running 
with  the  land  granted,  and  enforceable 
against  the  grantee  of  the  covenantor.  Har- 
per V.  Virginian  R.  Co.  (W.  Va.)  1918D-1081. 

4.  Covenants  of  Title. 

11.  Special   assessment   as  incumbrance. — 

Where  special  assessments  against  real  es- 
tate have  been  declared  void,  but  are  subse- 
quently relevied,  they  do  not  constitute  an 
incumbrance  which  relates  back  to  the  orig- 
inal levy  so  as  to  come  within  a  covenant  of 
warranty  against  incumbrances  which  was 
entered  into  subsequent  to  the  first  levy  and 
before  the  relevy.  Armstrong  v.  Banking 
Trust  Co.  (Kan.)  1918D-972.         (Annotated) 

12.  In  an  action  to  recover  for  breach  of  a 
covenant  against  incumbrances,  it  was  shown 
that  in  1902  the  city  of  Kansas  City  levied 
special  taxes  against  the  real  estate  for  local 
improvements,  the  assessments  being  payable 
in  ten  annual  instalments.  After  they  were 
levied  and  before  any  instalments  were  paid, 
the  assessments  were  declared  void,  and  their 
collection  enjoined.  On  March  24.  1912,  sub- 
sequent to  the  conveyance  of  the  land  to 
plaintiff,  the  city  relevied  the  assessments 
under  the  provisions  of  section  993  Gen.  St. 
1909.  Held  the  real  estate  was  subject  to 
reassessment  of  the  taxes,  which  made  them 
in  a  strict  sense  an  incumbrance,  yet  they 
did  not  become  an  incumbrance  in  the  sense 
contemplated  by  the  covenant  until  they  be- 
came a  lien  by  virtue  of  the  relevy.  Arm- 
strong V.  Banking  Trust  Co.  (Kan.)  1918D- 
972.  (Annotated) 

5.  Recitals. 

13.  As  reviving  right  of  stranger. — A  re- 
cital in  a  deed  from  such  purchasers  to  a 
third   person   that   the   deed   was   subject   to 

Ann.  Cas.  Dig.  1918C-E.— 6. 


a  contract  permitting  the  railroad  company 
to  remove  gravel  does  not  revive  the  com- 
pany's right  to  remove  gravel  where  the  com- 
pany is  a  stranger  to  the  deed.  Simmons  v. 
Northern  Pac.  R.  Co.   (Wash.)   1918C-1184. 

14.  Ancient  deed. — While  recitals  in  a  re- 
cent deed  are  not  evidence,  except  as  between 
parties  to  it,  recitals  in  a  deed,  which  has 
been  recorded  more  than  thirty  years,  and 
is  therefore  an  ancient  deed,  that  the  grant- 
ors were  heirs  of  the  then  record  owner  of 
the  land  conveyed,  as  heirship  and  family 
can  be  proved  by  hearsay  evidence,  were  ad- 
missible as  prima  facie  evidence  of  the  facts 
recorded  against  strangers  to  the  title,  es- 
pecially as  the  recitals  were  further  corrob- 
orated by  the  fact  that  the  grantee  and  his 
successor  in  title  paid  the  taxes  on  the  land 
and  for  thirty  years  exercised  such  control 
and  public  acts  of  ownership  that  it  was 
generally  known  by  the  name  of  said  suc- 
cessor in  title.  Fielder  v.  Pemberton  (Tenn.) 
1918E-905.  (Annotated) 

6.  Proceeding  to  Forfeit  Rights  under  Deed. 

15.  Nature. — A  proceeding  to  declare  that 
the  rights  under  a  master's  timber  deed 
made  in  an  action  by  the  parties  to  carry 
out  tlie  provisions  of  an  option  had  expired, 
and  to  enjoin  the  exercise  of  any  further 
rights  under  the  deed  and  for  damages,  is  not 
a  proceeding  to  reform  a  deed.  Berry  v. 
Marion  County  Lumber  Co.  (S.  C.)  1918E- 
877. 

16.  Return  of  consideration. — In  an  action 
to  declare  that  the  rights  under  a  master's 
deed  executed  pursuant  to  a  timber  option 
had  expired,  the  return  of  the  money  re- 
ceived as  consideration  for  the  deed  is  not 
necessary  in  the  absence  of  an  attempt  to  re- 
form the  deed.  Berry  v.  Marion  County 
Lumber  Co.  (S.  C.)  1918E-877. 


DEFAMATION. 

See  Libel  and  Slaxdeb. 

DEFAULT  JUDGMENTS. 

See  Judgments,  9. 

In    justice's    court,    see    Justices    of    the 
Peace,  1-4. 

DEFINITIONS. 

See  Words  and  Phbases. 

DELEGATION  OF  POWERS. 

Of  corporate  directors,  see  Cobpobatioxs,  19. 
Of    lesislative    power    see    CoNSTircnoNAi. 
jjAW,  18. 

DELIVERY. 

Of  deed,  see  Deeds,  1. 


82 


ANN.  CAS.  DIGEST  (1918C-1918E). 

D£MAND.  DEPOT. 


As  condition  precedent  to  action  for  conver- 
sion, see  Conversion,  2. 

Necessity  to  allege  demand  to  obtain  refor- 
mation of  instrument,  see  Kescission, 
Cancellation   and   Reformation,   8." 


DEMURRAGE. 

Construction  of  Reciprocal  Demurrage  Act, 

See  Cabeiebs,  7. 
Effect    of    partial    invalidity    of    Reciprocal 

Demurrage  Act,  see  Statutes,  8. 


DEIOJRRER. 

See  Pleading,  11-14. 

Admission  by  demurrer  to  petition  for  In- 
junction, see  Injunctions,  18. 

Effect  of  demurrer  to  information  in  nature 
of  quo  waranto,  see  Quo  Warranto,  7,  8. 


DEMURRER  TO  EVIDENCE. 

Review  of  judgment  on  demurrer  to  evidence, 
see  Appeal  and  Error,  52. 


DENTISTS. 

Employment  of  unlicensed  assistant  as  de- 
fense to  action  on  indenmitv  policy,  see 
Insurance,  26-29. 

Indemnity  against  liability  for  malpractice, 
see  Insurance,  23-29. 

Liability  for  negligence,  see  Physicians  and 
Surgeons,  11,  12. 


Covenant  to  maintain,  see  Deeds,  10. 
•Enforcement  of  contract  to  maintain  depot, 
see  Specific  Performance,  5-33. 


DESCENT  AND  DISTRIBUTION. 

See   Dower  ;    Executors    and    Administra- 
tors; Trusts  and  Trustees-  Wills. 

1.  "Children."— The  word  'children,"  as 
used  in  subdivision  3  of  section  8418,  Rev. 
Laws  1910,  which  provides  that,  if  there  be 
no  issue,  nor  husband,  nor  wife,  nor  father, 
nor  mother,  the  estate  of  an  intestate 
descends  in  equal  shares  to  the  brothers  and 
sisters  of  the  decedent,  and  to  the  children  of 
any  deceased  brother  or  sister,  by  right  of 
representation,  does  not  include  grandchil- 
dren of  a  deceased  brother  or  sister  of  the  in- 
testate. Lowery  v.  Le  Flore  (Okla.)  1918E- 
1001.  (Annotated) 


DESCRIPTION. 

Of  beneficiary  in  will,  see  Wnxs,  29-34,  41. 
Of  property  in  deed,  see  Deeds,  2,  3. 


DESERTION. 

Allegations  as  to  desertion  in  divorce  suit, 

see  Divorce,  2. 
Of  person  in  military  service,  see  Abut  and 

Navy,  7. 


DILIGENCE. 

In  discovering  evidence,  see  New  Trial,  2^ 


DEPARTURE. 

In  pleading  generally,  see  Pleading,  15. 
In   pleading  in   action   on  insurance   policy, 
see  Insurance,  22. 


DIRECTION  OF  VERDICT. 

See  Vebdict,  10,  11. 

Review  of  directed  verdict,  see  Appeal  and 
Ebror,  51. 


DEPOSIT. 

Deposit  in  lieu  of  bond  on  appeal,  see  Appeal 

AND  Error,  111,  112. 
In  lieu  of  bail,  see  Bail,  1-3. 
Requiring  deposit  of  fare  in  box,  see  Cab- 

BIEBS,  3,  4. 


DEPOSITIONS. 

1.  Exhibit  not  attached. — Where  a  pro- 
bated will  is  referred  to  in  a  deposition,  it  is 
not  necessary  to  attach  it  as  an  exhibit,  as 
its  identity  may  be  established  by  parol, 
although  the  better  practice  is  to  attach  an 
exemplified  copy.  In  re  Clodfelter  (X.  C.) 
1918E-281.  (Annotated) 


DIRECTORS   OF  CORPORATIONS. 

See  COEPOBATIONS,  18-22. 

DIRECT   PRIMARY   LAW. 

Withdrawal  of  candidacy  under  act,  see  Elec- 
tions, 12,  13. 

DISABILITY. 

Compensation  to  employee,  see  Master  and 
Servant,  10,  11. 

Within  accident  insurance  policy,  see  Acci- 
dent Insurance,  1,  2,  4. 


DISBARMENT— DIVORCE. 


83 


DISBARMENT. 

See  ATTOEtNETS,  18-21. 

DISCHARGE. 

Of  accommodation  maker  of  note,  see  Bills 
AXD  Notes,  1. 

DISFIGTTREMENT. 

As  element  of  dainages,  see  Damages,  2. 

DISMISSAL  AND  NONSUIT. 

Discontinuance  by  condemnor  of  eminent  do- 
main proceedings,  see  Eminent  Domain, 
15,  16. 

Eight  to  dismiss  bill  where  cross  bill  filed, 
see  Equity,  2. 

1.  Dismissal  of  part  of  defendants. — In  an 
action  for  conspiracy  to  injure  plaintiff  in  his 
business,  the  petition  being  amended  to 
charge  a  libel  against  a  defendant,  in  the  ab- 
sence of  proof  to  support  the  charge  of  con- 
spiracy, there  being  sufficient  evidence  to 
support  the  libel  cliarge,  the  submission  of 
the  case,  as  to  defendant  charged  with  libel, 
and  its  dismissal  as  to  the  other  defendants, 
is  proper.  MeClintock  v.  McClure  (Ky.) 
1918E-96. 

2.  Motion  for  nonsuit. — On  motion  for 
judgment  of  nonsuit,  the  evidence  must  be 
construed  most  favorably  for  the  plaintiff. 
Krachanake  v.  Acme  Mfg.  Co.  (N.  C.)  1918E- 
540. 

3.  In  passing  upon  the  sufficiency  of  ev- 
idence challenged  by  a  motion  for  nonsuit  or 
by  a  motion  for  judgment  non  obstante  vere- 
dicto, it  is  only  where  the  court  can  say  as  a 
matter  of  law  that  there  is  neither  evidence 
nor  reasonable  inference  from  evidence  to  sus- 
tain the  verdict  that  either  of  such  motions 
can  be  granted.  Godefroy  v.  Hupp  (Wash.^ 
1918E-494. 


DISSOLUTION. 

Of  corporations,  see  Cobpobations,  4,  5. 
Of  marriage,  see  Marbiaqe,  9,  10. 


DISTRICT  ATTORNEY. 

As  party  to  divorce  suit,  see  Divorce,  3-5. 
Right  to  appeal  in  divorce  cases,  see  Appeal 

AND  EebOR,   11. 


DIVORCE. 


1.  Jurisdiction,  83. 

2.  Pleading,  83. 
8.  Defenses,  83, 
4.  Parties,  84. 


5.  Decree: 

a.  Conclusiveness,  84. 

b.  Remarriage,  84. 

6.  Custody  and  Support  of  Children,  84. 

7.  Appeal,  8.'). 

See  Alimony  and  Suit  Monet  ;   Mabbiage. 

Distinction  between  divorce  and  annulment 
of  marriage,  see  Mabbiage,  9,  10. 

Effect  on  right  of  husband  and  wife  to  tes- 
tify against  each  other,  see  Witnesses, 
3-5. 

Laws  governing  divorce  of  members  of  In- 
dian tribes  of  Oklahoma,  see  Indians,  2. 

Necessity  for  bond  in  appeal  by  district  at-      * 
torney  in  divorce  case,  see  Appeal  and 
Errob,  113. 

Order  requiring  support  by  father  of  child 
as  affecting  right  of  child  to  recover  for 
death  of  father,  see  Death  by  Wbong- 
FUL  Act,  15. 

Right  of  district  attorney  to  appeal  in  di- 
vorce cases,  see  Appfal  and  Ebboe,  11. 

Suit  by  divorced  wife  for  death  of  child,  see 
Death  by  Wbongful  Act,  5. 

Validity  of  contract  between  husband  and 
wife  facilitating  divorce,  see  Husband 
and  Wife,  14; 

Validity  of  marriage  in  foreign  state  within 
proscribed  time  after  divorce,  see  Mab- 
biage, 1,  2. 

1.  Jurisdiction. 

1.  Domidl  of  parties. — A  British  subject 
does  not  lose  his  domicil  of  origin  by  res- 
idence in  the  British  Protectorate  in  Egypt 
where  he  is  not  subject  to  the  local  laws  or  to 
the  jurisdiction  of  local  courts,  and  according- 
ly an  action  for  divorce  may  be  maintained 
in  England  between  British  subjects  resident 
in  Egypt.  Casdagli  v.  Casdagli  (Eng.)  1918E- 
669.  (Annotated) 

2.  Pleading. 

2.  Allegations  as  to  desertion. — ^A  com- 
plaint, averring  that  the  conduct  of  the  de- 
fendant husband  had  amounted  to  contin- 
uous and  wilful  desertion  within  the  meaning 
of  the  statutes  of  the  state  of  Oregon  govern- 
ing divorce  proceedings,  and  which  further 
averred  that  the  spouses  had  lived  separately 
for  a  space  of  a  year,  does  not  show  a  deser- 
tion for  a  period  of  one  year,  which,  by  L.  0. 
L.  §  507,  is  made  ground  for  a  divorce;  the 
averments  relating  to  the  desertion  being  con- 
clusions of  law.  Smythe  v.  Smythe  (Ore.) 
1918D-1094. 

3.  Defenses. 

3.  Duty  of  district  attorney  to  urge  de- 
fense.— As  the  state  is,  by  L.  0.  L.  §  1020,  as 
amended  by  Laws  1911,  p.  126,  made  a  party 
to  an  action  for  divorce,  the  district  attorney 
should,  where  the  defendant  makes  no  de- 
fense, urge  any  defense,  as  the  failure  of  the 
complaint  to  state  a  cause  of  action,  that  can 
he  made.  Smythe  v.  Smythe  (Ore.)  1918D- 
1094.  (Annotated) 


84 


ANN.  CAS.  DIGEST  (1918C-1918E). 


4.  Parties. 

4.  When  state  not  party  to  action. — Where 
in  a  divorce  action  the  district  attorney 
neither  demurred  nor  answered,  he  did  not 
make  the  state  a  party  to  the  action  xinder 
L.  0.  L.  §  542,  providing  that  to  plead  or  de- 
mur shall  constitute  an  appearance.  Smythe 
V.  Smythe  (Ore.)  1918D-1094. 

5.  L.  O.  L.  §  1020  as  amended  by  Laws 
1911,  p.  126,  declares  that  in  any  suit  for  dis- 
solution of  the  marriage  contract,  the  state  is 
to  be  deemed  a  party  defendant,  and  the 
plaintiff  shall  cause  the  summons  to  be  served 

«  on  the  district  attorney  or  his  deputy,  and  it 
shall  be  the  duty  of  such  district  attorney,  so 
far  as  may  be  necessary  to  prevent  fraud  or 
collusion  in  such  suit,  to  control  the  proceed- 
ings on  the  part  of  the  defense,  and  in  case 
the  defendant  does  not  defend  in  good  faith, 
to  make  a  defense  on  behalf  of  the  state,  and 
that  the  court  shall  not  hear  or  determine 
any  suit  for  divorce  until  service  has  been 
had  or  unless  the  district  attorney  or  his  duly 
appointed  deputy  waive  the  provisions  of  the 
action  by  appearing  in  person  at  the  trial  of 
the  cause,  or  by  written  acknowledgement  of 
service.  Xo  process  in  a  divorce  proceeding 
was  served  on  the  district  attorney  or  his 
deputy,  but  the  attorney  appeared  at  the 
hearing  before  the  referee.  It  is  held  that,  as 
the  district  attorney  did  not  answer,  demur, 
or  give  notice  of  waiver  of  appearance,  he 
was  not  a  party  to  the  action;  his  appearance 
before  the  referee  not  being  an  appearance 
before  the  court  hearing  the  divorce  suit. 
Smythe  v.  Smythe  (Ore.)  1918D-1094. 

(Annotated) 

5.  Decree. 

a.  Conclusiveness. 

6.  Decree  not  providing  for  alimony. — 
Where  a  wife  asks  alimony  in  a  divorce  ac- 
tion, and  none  is  awarded,  the  effect  is  the 
same  as  if  the  decree  had  expressly  denied  it, 
and  is  an  adjudication  binding  on  the  parties. 
Spain  V.  Spain  (la.)  1918E-1225. 

(Annotated) 

7.  Where  the  husband's  finances  were  such 
at  the  time  of  divorce  that  a  decree  of  ali- 
mony would  have  been  unavailing,  while  the 
wife  had  property  of  her  own,  the  failure  of 
the  divorce  decree  to  provide  for  alimony  can- 
not be  treated  as  the  result  of  fraud  or  mis- 
take, though  the  wife  contended  her  husband 
agreed  to  support  her  if  alimony  was  not 
claimed.     Spain  v.  Spain  (la.)   1918E-1225. 

(Annotated) 

8.  When  divorce  was  granted,  and  the  wife 
given  custody  of  the  minor  child  of  the  mar- 
riage, no  such  provision  for  alimony  or  sup- 
port of  the  child  was  made,  the  husband 
being  then  bankrupt,  and  the  wife  then  hav- 
ing several  thousand  dollars.  Thereafter  the 
husband  remarried,  and,  being  about  to  re- 
ceive property  from  the  distribution  of  his 
father's  estate,  the  divorced  wife,  under  Code, 
§  3180,  providing  that  when  divorce  is  decreed 
the  court  may  make  such  order  in  relation  to 
the  children,  property,  parties,  and  mainte- 


nance of  the  parties  as  shall  be  right,  and 
subsequent  changes  shall  be  made  when  cir- 
cumstances render  them  expedient,  applied  a 
modification  of  the  original  decree  so  as  to 
allow  alimony  and  provide  for  the  support  of 
the  child  of  the  marriage.  It  is  held  that, 
while  provision  might  be  made  for  the  sup- 
port of  the  child,  the  divorced  wife  could  not 
be  granted  alimony;  the  original  decree  mak- 
ing no  provision  for  any  alimony,  not  being 
subject  to  modification  and  being  a  conclusive 
adjudication  denying  alimony.  Spain  v. 
Spain  (la.)  1918E-1225.  (Annotated) 

9.  In  such  case,  where  the  husband  at  the 
time  of  the  application  was  considerably  in- 
debted and  his  net  income  amounted  to  less 
than  $2,000,  while  the  property  he  expected 
to  receive  from  the  distribution  of  his  father's 
estate  was  about  $5,000,  an  award  of  $2,000, 
together  with  direction  for  the  payment  of 
an  additional  $2,000  in  monthly  instalments 
of  $30,  was  too  drastic,  and  could  not  in  any 
event  be  upheld.  Spain  v.  Spain  (la.)  1918E- 
1225. 

b.  Remarriage. 

10.  Marriage  within  proscribed  time. — Un- 
der chapter  70  of  the  Sessions  Laws  of  1001, 
which  provides  that  the  effect  of  a  judgment 
decreeing  a  divorce  is  to  restore  the  parties 
to  the  state  of  unmarried  persons,  except 
that  neither  party  to  a  divorce  may  marry 
within  three  months  after  the  time  such  de- 
cree is  granted,  a  marriage  contracted  by  a 
divorced  person  less  than  three  months  after 
the  decree  was  rendered  is  not  void,  and  may 
not  be  assailed  collaterally  upon  probate  of 
such  person's  estate.  Woodward  v.  Blake 
(N.  D.)  1918E-552.  (Annotated) 

6.  Custody  and  Support  of  Children. 

11.  Allowance  for  children — Power  to  modi- 
fy.— .Judgment,  in  a  divorce  action  against 
the  husband,  ordering  him  to  pay  a  sum  to 
his  wife  for  support  of  their  infant  child, 
may  be  opened  up  at  any  time  by  appro- 
priate proceedings  and  additional  allowances 
made.  Davis  v.  Cincinnati,  etc.,  R.  Co.  (Ky.) 
1918E-414. 

12.  Decree  not  providing  for  maintenance. 
— The  duty  and  responsibility  of  parents  for 
the  maintenance  and  education  of  minor  chil- 
dren are  not  altered  by  the  rendition  of  a 
decree  of  divorce  in  which  no  provision  is 
made  for  the  children,  and  the  obligation  of 
the  father  therefor  is  not  canceled  by  the 
fact  that  the  divorce  was  granted  to  him 
because  of  the  fault  of  the  mother.  Rowell 
V.  Rowell  (Kan.)   1918C-936.         (Annotated) 

13.  In  such  case  and  where  the  father  ne- 
glects to  provide  for  the  maintenance  and 
care  of  the  minor  children  and  leaves  that 
burden  entirely  to  the  mother  she  is  entitled 
to  recover  from  him  a  reasonable  amount  for 
the  expenditures  she  has  made  in  providing 
for  their  care  and  support.  Rowell  v.  Rowell 
(Kan.)    1918C-936.  (Annotated) 

14.  While  an  independent  action  may  be 
maintained  by  the  mother  for  such  relief,  the 
more  appropriate  and  complete  remedy  is  by 


DOCTORS— DRAIKS  AND  SEWERS. 


85 


opening  tlie  decree  of  divorce  wherein  an  al- 
lowance may  be  made  for  past  as  well  as 
future  support  of  the  children.  Rowell  v. 
Rowell  (Kan.)  19180-936. 

15.  While  a  divorce  dissolves  the  marriage 
status,  it  does  not  relieve  a  father  from  sup- 
porting his  minor  children,  and,  though  no 
provision  of  support  of  minor  children  of  the 
marriage,  who  were  awarded  to  the  wife,  was 
made  in  the  divorce  decree,  a  subsequent  ap- 
plication to  compel  the  divorced  father  to 
support  such  children  may  be  entertained. 
Spain  V.  Spain  (la.)  1918E-1225. 

16.  Nonsupport  by  nonresident  parent. — 
\Vhere  by  the  misconduct  of  a  husband  and 
father  in  another  state  his  wife  and  children 
are  compelled  to  leave  him,  and  they  come  to 
Kansas,  and  where  in  an  action  in  which  per- 
sonal service  has  been  had  upon  him  she  ob- 
tains a  divorce  and  a  decree  awarding  her  the 
custody  of  the  children,  and  requiring  him  to 
make  periodical  payments  for  their  support, 
he  may  thereafter,  while  in  another  state,  be 
guilty' of  a  violation  of  the  statute  referred 
to,  by  failing  to  provide  in  any  way  for  the 
children,  notwithstanding  that  they  were 
brought  into  this  state  without  his  knowledge 
or  consent.  State  v.  Wellman  (Kan.)  1918D- 
1006. 

7.  Appeal. 

17.  Right  of  state  to  appeal. — ^^Miere  the 
state  was  not  made  a  party  to  and  did  not 
appear  in  an  action  for  divorce,  as  required 
by  L.  0.  L.  §  1020,  a^  amended  by  Laws  1911, 
p.'  126,  the  state  may  appeal  from  the  judg- 
ment of  divorce,  which  is  void  as  to  it,  for 
the  decree  cannot  as  to  it  be  classed  as  one 
for  want  of  an  answer  described  in  section 
549,  declaring  that  any  party  to  a  decree  or 
judgment  other  than  a  judgment  or  decree 
given  by  confession  or  for  want  of  an  answer 
may  appeal.  Smythe  v.  Smythe  (Ore.) 
1918D-1094.  (Annotated) 


DOCTORS. 

See  Phtsicians  and  Surgeons. 

DOCUMENTARY  EVIDENCE. 

See  Evidence,  17,  23. 

DOING  BUSINESS. 

What  constitutes  doing  business  by  foreign 
corporation,  see  Corpobations,  47-49. 

DOMICIL. 

Of  parties  to  divorce  suit,  see  Divorce,  1. 


Power  of  executor  to  deprive  widow  of  life 
estate  under  power  of  sale,  see  Execu- 
tors AND  Administrators,  14. 

1.  Lands  subject  to  executory  limitation. 
— ^A  widow  is  entitled  to  dower  in  the  estate 
held  by  her  husband  in  fee,  subject  to  execu- 
tory limitations.  Sheffield  v.  Cooke  (R.  I.) 
1918E-961. 

2.  ^^^lere  land^  was  devised  in  fee  subject 
to  executory  limitations  and  after  the  death 
of  a  devisee  considerable  amount  of  the  real 
estate  had  been  sold  and  the  proceeds  of  sales 
used  necessarily  for  the  payment  of  various 
charges,  the  widow  of  the  devisee  who  did 
not  release  dower  has  no  claim  for  dower 
either  in  the  real  estate  so  sold  or  in  the  pro- 
ceeds so  expended.  Sheffield  v.  Cooke  (R.  I.) 
1918E-961. 

3.  Where  unimproved  land  is  devised  sub- 
ject to  executory  limitations  and  power  of 
sale  in  trustees,  as  the  power  of  sale  is  not 
mandatory  but  was  to  be  exercised  only  to 
enable  the  trustees  to  pay  annuities,  charges, 
taxes,  and  assessments,  placed  upon  the 
estate  by  the  will,  the  will  does  not  work  an 
equitable  conversion  of  the  real  estate,  and 
the  widow  of  the  devisee  is  entitled  to  dower 
in  the  land  and  in  the  proceeds  not  necessary 
to  pay  the  enumerated  charges,  the  wife's 
dower  not  being  superior  to  the  liens  or  in- 
cumbrances created  prior  to  the  husband's 
title,  in  incumbered  property  of  the  husband. 
Sheffield  v.  Cooke  (R.  I.)   1918E-961. 

4.  Dower  in  proceeds  of  sale.-*-Although  a 
widow  may  be  awarded  a  gross  sum  as  dower 
in  the  proceeds  of  sales  of  land,  such  an 
award  may  be  made  only  when  the  circum- 
stances justify  it.  Sheffield  v.  Cooke  (R.  I.) 
1918E-961. 

5.  Under  Gen.  Laws  1909,  c.  329,  §  2,  pro- 
viding that  where  inheritances  are  entire,  and 
no  division  can  be  made,  so  that  a  woman 
can  be  endowed  of  the  thing  itself,  she  shall 
be  endowed  in  a  special  and  certain  manner, 
as  of  a  third  part  of  the  rents,  and  section 
17,  providing  for  the  same  mode  of  assign- 
ment in  suits  in  equity,  where  a  widow  is 
entitled  to  dower  in  the  proceeds  of  the  sale 
of  real  estate  left  to  her  husband  in  trust 
subject  to  executory  limitations  and  power 
of  sale  in  trustees,  she  will  be  allowed  an- 
nually the  legal  interest  on  one-third  of  the 
total  proceeds  derived  from  the  sale  of  real 
estate,  less  the  payment  of  the  necessary 
charges  and  expenses  for  that  vear.  Sheffield 
V.  Cooke  (R.  L)  1918E-961. 

6.  Rights  of  widow  before  assignment. — A 
widow  who  has  elected  to  take  dower,  in- 
stead of  under  the  will  is  not  entitled  to  the 
possession  of  any  particular  tract,  against 
the  devisees  or  heirs,  until  after  the  commis- 
sioners have  set  oflf  her  dower  to  her.  Scot- 
ten  V.  Moore   (Del.)  1918C-409. 


DOIXTER. 

Effect  of  renunciation  of  rights  under  will  by 
widow,  see  Wills,  49-51. 


DRAINS  AND   SEWERS. 


Drain  pipe  as  easement,  see  EACEMEm^s,  3. 


86 


ANK  CAS.  DIGEST  (191SC-1918E). 


DRESSMAKING  SHOP. 

Ab  manufacturing  establishment,  see  Labob 
Laws,  10-11. 


DUE  PROCESS  OF  ULW. 

See  Constitutional  Law,  10, 
In  proceedings  before  state  Board  of  equaliza- 
tion, see  Taxation,  18. 


DUMBfY  CORPORATION. 

Appropriation  of  land  by  dummy  corporation, 
see  Eminent  Domain,  3. 


DUPLICITY. 

In'  pleading,  see  Pleading,  10. 

DTIITG   DECLARATIONS. 

See    Admissions    and   Declarations;    Evi- 
dence. 

1.  Foundation  for  admission. — It  is  the 
province  of  the  court  to  determine  in  the 
first  instance,  the  admissibility  of  declara- 
tions offered  in  evidence  as  dying  declara- 
tions, and  for  the  purpose  of  proving  the 
declarant's  sense  of  impending  death,  expres- 
sions or  statements  of  the  deceased  are  al- 
ways admissible,  if  made  at  or  about  the 
time  the  dying  declarations  were  made;  and 
in  this  case  it  was  the  duty  of  the  court  to 
hear  the  evidence  offered  by  the  defendant, 
before  determining  that  the  dying  declara- 
tions were  incompetent  and  inadmissible. 
Morehead  v.  State  (Okla.)  1918C-^16. 

2.  Impending  death. — ^The  rule  is  universal 
that  before  dying  declarations  can  be  ad- 
mitted in  evidence  it  must  appear  that  they: 
were  made  under  a  sense  of  impending  death, 
but  it  is  not  essential  that  the  declarant 
state  that  they  are  so  made.  It  is  sufficient 
if  it  satisfactorily  appears  in  any  manner  that 
they  were  made  under  that  sanction.  Poling 
v.  State  (Okla.)  1918E-663. 

8.  Dying  declarations,  to  be  admissible, 
must  be  made  under  a  sense  of  impending 
death;  but  it  is  not  necessary  that  the  dec- 
larant state  that  he  is  expecting  immediate 
death.  It  is  enough  if,  from  all  the  circum- 
stances, it  satisfactorily  appears  that  such 
was  the  condition  of  his  mind  at  the  time  of 
the  declarations.  Morehead  v.  State  (Okla.) 
1918C-416. 

4.  Manner  of  making. — Dying  declarations 
may  be  made  by  signs  as  well  as  by  words, 
and  where  the  declarant  is  in  a  dying  con- 
dition, and  so  injured  as  to  be  unable  to 
speak,  the  fact  that  in  response  to  questions 
her  answers  were  indicated  by  nodding  and 
shaking  her  head,  and  pointing  her  finger, 
forms  no  objection  to  the  competency  and 
admissibility  of  such  declarations.  Poling  v. 
State  (Okla.)  1918E-663. 


5.  Admissibility  on  behalf  of  accused. — On 
a  trial  for  murder  the  dying  declarations  of 
the  deceased  are  not  limited  as  evidence  in 
favor  of  the  state  alone  but  are  equally  ad- 
missible in  favor  of  the  defendant.  Morehead 
V.  State  (Okla.)  1918C-416.  (Annotated) 

6.  Declarations  of  third  person. — The  decla- 
ration of  a  third  person  who  was  fatally 
wounded  by  the  accused's  victim  is  inadmis- 
sible, on  the  accused's  behalf,  as  a  dying  dec- 
laration.   Holland  v.  State  (Ark.)  1918C-578. 

(Annotated) 


DYNAMITE  CAPS. 

Leaving  where  accessible  to  children,  see  Ex- 
plosions and  Explosives,  4,  5. 


EASEMENTS. 

[Loss  by  failure  to  mention  in  deed,  see  Deeds, 

7. 
Eight   of  guardian   to   impose   servitude   on 

sale    of    property,    see    Guardian    and 

Ward,  1. 
Right  of  one  tenant  in  common  to'grant,  see 

Tenants  in  Common,  1. 

1.  Implied  reservation  or  grant. — To  raise 
an  implied  reservation  or  grant  of  an  ease- 
ment the  existing  servitude  must  at  the  time 
of  the  deed  be  apparent,  continuous  and 
strictlv  necessary.  Miller  v.  Skaggs  (W. 
Va.)    19180-929. 

2.  It  is  a  general  rule  of  the  common  law, 
applicable  in  such  cases,  that  when  the  owner 
of  two  tenements  sells  one  of  them,  or  the 
owner  of  an  entire  estate  sells  a  portion 
thereof,  the  purchaser  takes  the  tenement  or 
portion  sold  with  all  the  benefits  and  burdens 
which  appear  at  the  time  of  the  sale  to  be- 
long to  it,  as  between  it  and  the  property 
which  the  vendor  retains.  ZMiller  v.  Skaggs 
(W.  Va.)  1918D-929. 

3.  Visibility. — An  apparent  easement  need 
not  be  actually  visible.  It  is  enough  that  the 
facts  and  circumstances,  fairly  construed,  will 
disclose  it  as  in  the  case  of  a  drain  pipe  under 
the  surface  into  which  the  water  is  conducted 
from  a  roof.  Miller  v.  Skaggs  (W.  Va.) 
1918D-929.     . 

4.  Meaning  of  "necessary."— The  rule  of 
strict  necessity  applicable  to  an  implied  res- 
ervation or  grant  of  an  easement  is  not 
limited  to  one  of  absolute  necessity,  but  tc 
reasonable  necessity,  as  distinguished  from 
mere  convenience.  Miller  v.  Skaggs  (W.  Va.)  ■ 
1918D-929.  Annotated) 


EGGS. 

Negligence  in  storage,  see  Food,  1-4. 

EJECTION. 

Of  guest,  see  Innkeepers,  2. 
Of  passenger,  see  Carriers  of  Passengers, 
12,  13. 


EJECTMENT- 

EJECTMKNT. 

1.  Title  of  plaintiff. — PlaintiflFs  in  eject- 
ment must  recover  on  the  strength  of  their 
own  title,  not  on  the  weakness  of  defend- 
ant's.    Scotten  V.  Moore  (Del.)  19180-409. 

EI.ECTION. 

Between  counts   in  criminal   proceeding,  see 

Cbiminal  Law,  12. 
Effect  of  renimciation  of  rights  under  will 

by  widow,  see  Wills,  49-51. 
Of  annuitant  to  take  capital  sum,  see  An- 

KTJITIES,  1. 

•ELECnOTX    OF   REMEDIES. 

Waiver  of  tort  and  suit  in  assumpsit,  see 
TOETS,  1,  2. 

ELECTIONS. 

1.  Constitutionality  of  Election  Laws,  87. 

2.  Nominations  and  Primary  Elections: 

a.  In  General,   87. 

b.  Qualitieation  of  Voters,  87. 

c.  Withdrawal  of  Candidacy,  87. 

3.  Submission  of  Questions,  88. 

4.  Qualification  of  Voters,  89. 

5.  Corrupt  Practices  Acts,  89. 

See  Local  Option  ;  I?sitiati\"e  and  Refeb- 
EXDUM;  Public  Offioebs. 

Review  of  judgment  of  voters  as  to  prac- 
ticability of  electing  candidates  of  dif- 
ferent political  parties,  see  Public  Of- 
FICEBS,  6,   7. 

1.  Constitutionality  of  Election  Laws. 

1.  Provision  for  second  choice  voting. — 
Primary  Election  Law  1915,  §§  14,  15,  26,  27, 
28,  29,  providing  for  second  choice  voting 
at  primaries,  is  not  violative  of  Const,  art.  2, 
§  2,  prescribing  the  qualifications  of  electors, 
and  article  5,  §  5,  providing  that  the  persons, 
respectively,  having  the  highest  number  of 
votes  for  governor  and  lieutenant  governor, 
shall  be  elected,  but,  in  case  two  or  more 
persons  shall  have  an  equal  and  the  highest 
number  of  votes  for  either  office,  the  general 
assembly  shall,  by  joint  vote,  forthwith  pro- 
ceed to  elect  one  of  the  said  persons  governor 
or  lieutenant  governor,  as  the  case  may  be, 
on  the  ground  that  the  constitution  contem- 
plates a  single  vote  by  each  elector,  since 
primary  elections  were  not  contemplated  by 
such  constitutional  provisions.  Kelso  v.  Cook 
(Ind.)   1918E-68. 

2.  Statute  authorizing  nomination  by  dif- 
ferent methods. — Primary  Election  Law  1915, 
§  14,  authorizing  the  nomination  of  governor 
and  United  States  senator  by  state-wide  pri- 
mary, while  requiring  nominations  for  other 
state  officers  to  be  made  at  state  conventions, 
is  not  violative  of  Const,  art.  1.  §  2.3,  provid- 
ing that  the  general  assembly  shall  not  irrant 


-ELECTIONS. 


87 


to  any  citizen  or  class  of  citizens  privileges  or 
immiinities  which  upon  the  same  terms  shall 
not  equally  belong  to  all  citizens.  Kelso  v. 
Cook  (Ind.)   1918E-68. 

3.  Requiring  payment  of  fees  by  candi- 
dates.— Primary  Election  Law  1915,  §  13,  re- 
quiring candidates  to  pay  into  the  state  and 
county  treasury  a  fee  equal  to  one  per  cent 
of  the  annual  salary  of  the  offices  they  seek, 
is  violation  of  Const,  art.  1,  §  23,  providing 
that  the  general  assembly  shall  not  giant  to 
any  citizen  or  class  of  citizens  privileges  or 
immunities  which  upon  the  same  terms  shall 
not  equally  belong  to  all  citizens.  Kelso  v. 
Cook  (Ind.)   1918E-68. 

2.  Nominations  and  Primary  Elections. 

a.  In  General. 

4.  Nature  of  primary  election. — The  prim- 
ary election  provided  by  the  Primary  Election 
Law  of  1915,  occurring  at  regular  intervals, 
is  a  "general  election"  and  not  a  "'special 
election."    Kelso  v.  Cook  (Ind.)   1918E-68. 

b.  Qualification  of  Voters. 

5.  Validity   of   Primary   Election   Law. — 

Primary  Election  Laws  1915,  §  10,  requiring 
an  oath  of  party  allegiance  from  a  challenged 
voter,  is  not  violative  of  Const,  art.  2,  §  13, 
providing  that  all  elections  by  the  people 
shall  be  by  ballot,  which  contemplates  a 
secret  ballot,  as  requiring  the  voter  to  dis- 
close how  he  voted  at  the  preceding  election 
and  how  he  intends  to  vote  at  the  coming  one, 
since  the  statute  does  not  require  the  chal- 
lenged voter  to  specifically  state  for  whom  he 
previously  voted,  but  merely  that  he  vot«d 
for  a  majority  of  the  party's  candidates,  and 
there  is  nothing  in  the  constitutional  provi- 
sions making  it  unlawful  for  one  to  volun- 
tarily state  how  he  voted  or  intends  to  vote. 
Kelso  V.  Cook  (Ind.)  191SE-68. 

6.  Primary  Election  Law  1915,  §  10,  pro- 
viding that  each  qualified  voter  of  the  pre- 
cinct who  at  the  last  preceding  general  elec- 
tion voted  for  a  majority  of  the  regularly 
nominated  condidates  of  the  party  holding 
the  primary  shall  be  entitled  to  vote  at  it, 
provided  he  was  registered  as  a  voter  at  such 
previous  general  election,  and  that  if  he  was 
not  registered  he  shall  make  a  prescribed 
affidavit,  upon  being  challenged,  as  provided, 
by  any  voter  at  the  election,  is  not  violative 
of  Const,  art.  2,  §  13,  providing  that  all  elec- 
tions by  the  people  shall  be  by  ballot  and  all 
elections  by  the  general  assembly,  or  either 
branch  thereof,  shall  be  viva  voce,  on  the 
theory  that  any  qualified  legal  voter  of  the 
precinct,  regardless  of  party,  may  challenge 
anyone  demanding  any  party  ballot,  for  lack 
of  previous  adherence  to  the  party  whose  bal- 
lot he  demands,  in  which  case  the  one  chal- 
lenged cannot  vote  unless  maxing  the  pre- 
scribed oath  of  party  allegiance,  since  one 
may  waive  any  right  conferred  for  his  own 
benefit,  whether  contractual,  statutory,  or 
constitutional,  unless  the  relinquishment  is 
detrimental  to  the  public,  so  that  the  test 
in  the  form  of  a  fealty  oath,  intended  solely 


88 


A]SA\  CAS.  DIGEST  (1918C-1918E). 


for  the  benefit  of  political  parties  interested, 
may  be  waived  by  the  particular  party  whose 
right  is  involved,  and  members  of  no  other 
party  may  question  the  voter's  right.  Kelso 
V.  Cook  (Ind.)  1918E-68. 

7.  The  Primary  Election  Law  of  1915 
(Acts  1915,  c.  105)  is  not  invalid  as  con- 
travening, by  providing  different  qualifica- 
tions for  voting  in  primaries,  including  tests 
of  party  affiliation.  Const,  art.  2,  §  2,  pro- 
vidmg  that  in  all  elections  every  male  citizen 
of  the  United  States,  twenty-one  years  or 
older,  who  shall  have  resided  in  the  state  for 
six  months,  in  the  township  sixty  days,  and 
the  ward  or  precinct  thirty  days  immediately 
preceding  such  election,  and  every  male  of 
foreign  birth  of.  the  same  age,  residence,  etc., 
who  shall  have  declared  his  intention  to  be- 
come a  citizen  of  the  United  States,  shall  be 
entitled  to  vote  in  the  township  or  precinct 
where  he  may  reside,  if  he  shall  have  been 
duly  registered  according  to  law,  since  the 
constitutional  provision  does  not  govern  pri- 
mary elections,  as  the  words  "primary  elec- 
tion" are  well  understood  to  mean  the  act 
of  choosing  candidates  by  political  parties  to 
fill  the  various  offices,  and  the  word  "elec- 
tion" means  the  final  choice  of  the  electors 
to  fill  such  offices,  while  to  assume  that  the 
provision  governs  primary  elections  would 
destroy  the  possibility  of  political  organiza- 
tion by  parties,  which  must,  necessarily,  be 
able,  by  test  of  affiliation,  to  exclude  voters 
hostile  to  them  from  voting  to  select  their 
candidates.     Kelso  v.  Cook   (Ind.)   1918E-68. 

(Annotated) 

8.  Primary  Election  Law  1915,  §  10,  pro- 
viding that  each  qualified  voter  of  the  pre- 
cinct who  at  the  last  preceding  general  elec- 
tion voted  for  a  majority  of  the  regularly 
nominated  candidates  of  the  party  holding 
the  primary  shall  be  entitled  to  vote  at  it, 
provided  such  elector  was  registered  as  a 
voter  at  such  previous  general  election,  etc., 
is  not  violative  of  Const,  art.  1,  §  23,  provid- 
ing that  general  assembly  shall  not  grant  to 
any  citizen  or  class  of  citizens  privileges  or 
immunities  which  on  the  same  terms  shall 
not  equally  belong  to  all  citizens,  as  exclud- 
ing, by  the  test  of  participation  in  a  primary, 
those  who  were  duly  registered  for,  but  did 
not  vote  at,  the  preceding  general  election  on 
account  of  unavoidable  accident,  etc.,  and  as 
permitting  to  participate  those  who  were  too 
young  to  register  and  vote.  Kelso  v.  Cook 
(Ind.)  1918E-68. 

9.  Primary  Election  Law  1915,  §  10,  pro- 
viding that  each  qualified  voter  of  the  pre- 
cinct, who,  at  the  last  preceding  general  elec- 
tion, voted  for  a  majority  of  the  regularly 
nominated  candidates  of  the  party  holding 
the  primary,  shall  be  entitled  to  vote  at  it, 
provided  he  was  registered  as  a  voter  at  such 
previous  general  election,  etc.,  is  not  violative 
of  Const,  art.  2,  §  1,  declaring  that  all  elec- 
tions shall  be  free  and  equal.  Kelso  v.  Cook 
(Ind.)  1918E-68. 

10.  Right  to  challenge  voter  at  primary. — 
Under  the  Primary  Election  Law  of  1915, 
any  voter  of  a  precinct  may  challenge  any 


nonresident    who   offers    to    vote.     Kelso   v. 
Cook  (Ind.)  1918E-68. 

c.  Withdrawal  of  Candidacy. 

11.  The  right  to  seek  election  to  any  office 
is  open  to  all  persons  possessing  the  consti- 
tutional or  statutory  qualifications,  but  a 
citizen  is  imder  no  obligation  to  seek  an  elec- 
tion to  any  office,  and  may  be  a  candidate  or 
refuse  to  be  such  at  his  option.  Bordwell  v. 
Williams  (Cal.)   1918E-358.  (Annotated) 

12.  Though  all  necessary  steps  have  been 
taken  to  enable  one  to  become  a  candidate 
for  nomination  for  the  office  of  United  States 
senator  under  the  Direct  Primary  Law  (St. 
1913,  p.  1379),  and  within  the  35  days  before 
election  allowed  by  section  5,  subd.  4,  he  has 
filed  with  the  secretary  of  state  his  affidavit 
stating  that,  if  nominated,  he  would  accept 
and  not  withdraw,  and  would  qualify  if  nomi- 
nated and  elected,  and  his  name  has  been 
certified  to  county  clerks,  with  directions  to 
print  it  on  the  primary  ballot  as  a  candidate, 
and  his  name  has  been  published  as  required 
by  section  10,  and  put  on  sample  ballots,  he 
may  withdraw  as  a  candidate.  Bordwell  v. 
Williams  (Cal.)  1918E-358.  (Annotated) 

13.  Under  the  Direct  Primary  Law,  section 
10  of  which  requires  the  county  clerk  to  pub- 
lish the  names  appearing  upon  the  list  certi- 
fied to  him  by  the  secretary  of  state,  section 
12,  providing  that  the  names  of  all  candidates 
for  whom  nomination  papers  have  been  filed 
shall  be  printed  on  the  ballot,  and  section  27, 
authorizing  an  application  to  the  supreme 
court  in  case  of  error,  omission,  or  wrongful 
act  in  placing  akiy  name  on  an  official  primary 
election  ballot  ir  in  printing  such  ballot,  and 
authorizing  the  court  to  order  the  officer  to 
correct  the  error,  the  county  clerk  acts  minis- 
terially in  publishing  the  names  certified  to 
him,  and,  where  a  can.didate  withdraws  after 
the  secretary  of  state  has  made  his  certificate, 
the  court,  by  mandamus,  may  compel  the 
county  clerk  to  omit  sucli  candidate's  name 
from  the  ballot  to  be  used  in  a  forthcoming 
primary  election.  Bordwell  v.  Williams 
(Cal.)   1918E-358. 

3.  Submission  of  Questions. 

14.  Submission  of  double  proposition. — If 
two  unrelated  propositions  are  submitted  on 
a  single  ballot  in  such  manner  that  one  is 
burdensome  and  coercive  so  as  to  suppress 
the  voters'  will  upon  the  other,  the  courts 
will  closely  scrutinize  the  elections  so  held. 
Keith  V.  Lockhart   (K.  C.)    1918D-916. 

15.  An  election  under  a  statute  providing 
for  submission  to  the  voters  of  the  double 
proposition  Avhether  the  fence  law  should  be 
adopted  and  whether  a  stipulated  tax  for  the 
construction  of  fences  should  be  levied,  to  be 
voted  upon  at  the  same  election  and  by  the 
same  ballot,  if  otherwise  valid,  may  be  con- 
strued as  a  sufficient  expression  on  both  ques- 
tions, and  an  affirmative  vote  would  authorize 
the  levy  of  the  tax.  Keith  v.  Lockhart  (N. 
C.)  1918D-916. 

16.  ^Vhere  a  statute  by  two  separate  pro- 
visions authorizes  an   election  to  determine 


ELECTEICITY. 


89 


the  question  whether  the  stock  law  should  be 
retained  or  fences  should  be  constructed,  and 
also  authorizes  the  submission  of  the  question 
of  a  tax  for  the  construction  of  fences,  and 
the  method  of  computing  the  tax  is  invalid, 
an  election  held  upon  both  propositions,  but 
one  ballot  being  used,  was  not  invalidated 
entirely,  but  was  good  as  to  the  stock-law 
provision  and  void  only  as  to  the  tax.  Keith 
V.  Lockhart  (N.  C.)  I918D-916. 

4.  Qualification  of  Voters. 

17.  Legislative  control. — The  provisions  of 
section  1,  article  V  of  the  constitution,  which 
pi-escribe  the  qualifications  of  electors,  con- 
trol in  all  elections  held  to  fill  offices  which 
the  constitution  itself  has  provided  for,  and 
in  all  elections  upon  questions  submitted  to  a 
vote  pursuant  to  provisions  of  the  constitu- 
tion; and  such  qualifications  can  be  altered 
only  by  amendment  to  the  constitution. 
State  V.  French  (Ohio)   1918C-897. 

18.  Grant  of  right  to  women  by  munic- 
ipal charter. — The  constitution  itself  having 
by  article  XVIII  committed  to  any  munic- 
ipality the  power  to  frame  and  adopt  a  char- 
ter for  its  government  and  to  exercise  there- 
under all  powers  of  local  self-government, 
subject  to  the  limitations  expressed  in  that 
article,  a  provision  in  the  charter  of  a  munic- 
ipality, adopted  in  full  compliance  with  the 
article  referred  to,  which  confers  upon  women 
the  right  to  vote  for  all  municipal  elective 
officers  and  to  be  appointed  or  elected  to  and 
liold  any  municipal  office  provided  for  in  such 
charter,  is  valid.  (Mills  v.  City  Board  of 
Elections  et  al.  54  Ohio  St.  631,  and  State  ex 
rel.  V.  City  of  Cincinnati  et  al.  19  Ohio  178, 
approved  and  followed.)  State  v.  French 
(Ohio)   1918C-896. 

5.  Corrupt  Practices  Acts. 

19.  Prohibition  of  contribution  by  corpora- 
tion.— A  manager  or  director  of  a  corporation, 
paying  to  a  "Personal  Liberty  League"  money 
of  the  corporation  for  expenses  in  opposing 
local  option  at  a  town  election,  is  held  to  be 
punishable,  under  Pub.  Acts  1913,  Xo.  109, 
§  14,  providing  that  no  director  of  a  corpora- 
tion shall  pay  money  thereof  to  any  political 
committee  for  anv  election  expenses.  People 
V.  Gansley  (Mich.')  1918E-165.      (Annotated) 


ELECTRICITY. 

1.  Care  Required  in  General,  89. 

2.  Injury  to  Children,  89. 

3.  Concurring   Negligence   of   Another   CoiA- 

pany,  90. 

4.  Actions  for  Injuries: 

a.  Evidence,    90. 

b.  Questions  for  Jury,  90. 

See  Lighting  Districts. 

Liability  of  city  and  electric  company  for  in- 
jury to  pedestrian  resulting  from  pick- 
ing up  electric  wire,  see  Streets  and 
Highways,  13-15. 


1.  Care  Required  in  General. 

1.  If  land  between  a  house  and  an  electric 
wire  pole  was  used  by  the  public  as  a  play- 
ground and  for  purposes  of  travel  for  thirty 
years,  electric  companies  stringing  wires  on 
the  pole  are  charged  with  notice  that  persons 
might  at  any  time  be  upon  the  land  with  the 
permission  of  the  owner.  Boutlier  v.  Maiden 
(Mass.)  1918C-910. 

2.  If  electric  companies  maintain  poles  up- 
on a  highway  and  near  the  line  between  the 
highway  and  an  open  lot  used  by  the  public 
with  the  owner's  permission,  on  which  poles 
wires  were  attached  carrying  a  high  voltage 
of  electricity,  the  companies  are  bound  to 
exercise  reasonable  care  to  maintain  their 
wires  so  that  persons  rightfully  on  the  lot 
will  not  be  injured.  Boutlier  v.  Maiden 
(Mass.)   1918C-910. 

3.  Wires  maintained  over  private  premises. 
— ^A  member  of  a  theatrical  company,  which 
had  rented  a  lot  for  tent  shows  and  who  was 
supposed  to  assist  in  packing  paraphernalia, 
is  not  a  trespasser  while  on  the  premises,  and 
where  a  light  company  negligently  allowed 
its  wires  over  the  premises  to  sag  so  that 
they  came  in  contact  with  paraphernalia  on 
a  wagon  it  cannot  defeat  recovery  by  the  ac- 
tor who  had  not  completely  packed  his  per- 
sonal belongings,  for  injuries  received  when 
he  mounted  the  wagon,  on  the  ground  that 
the  actor  was  a  trespasser.  Lancaster  Elec- 
tric Light  Co.  V.  Taylor  (Ky.)  1918C-591. 

(Annotated) 

4.  In  such  case  the  question  whether  the 
actor  was  a  volunteer  is  held  to  be  for  the 
jury.  Lancaster  Electric  Light  Co.  v.  Taylor 
(Ky.)   1918C-591.  (Annotated) 

5.  Wires  in  proximity  to  those  of  another 
company. — ^An  electric  company,  whose  wires 
by  agreement  are  strung  on  the  same  poles 
as  those  of  a  telephone  company,  and  which 
carry  a  heavy  current,  is  bound  to  see  that 
its  wires  are  in  such  reasonably  safe  condi- 
tion as  to  afford  protection  from  injury  to 
employees  of  the  telephone  company  coming 
in  contact  with  them  in  the  course  of  their 
employment.  Ridgeway  v.  Sayre  Electric  Co. 
(Pa.)   1918D-1.  (Annotated) 

2.  Injury  to  Children. 

6.  Electric  companies,  whether  rightfully 
upon  the  land  of  another  or  not  with  their 
wires  crossing  it,  owe  the  duty  to  a  boy  on 
the  land  in  the  owner's  right  to  use  due  dili- 
gence to  maintain  and  manage  their  electric 
wires  so  that  he  shall  not  be  injured.  Bout- 
lier V.  Maiden  (Mass.)  1918C-910. 

7.  A  boy  on  land  in  proximity  to  an  elec- 
tric wire  pole  by  the  implied  invitation  of  the 
owner  of  the  land  is  there  in  the  owner's 
right,  and  has  the  same  rights  against  elec- 
tric companies  whose  wires  are  strung  on  the 
pole  as  the  owner  would  have  had.  Boutlier 
V.  Maiden  (Mass.)  1918C-910. 

8.  If  an  open  space  between  a  house  and 
electric  wire  pole  had  been  used  by  the  public 
as  a  playground  and  a  common  passageway, 
and  had  been  used  for  travel  by  persons 
traveling  between  two  streets,  and  such  uses 


90 


ANA^.  CAS..  DIGEST  (1918C-1918E). 


had  been  made  with  the  knowledge  and  con- 
sent of  the  owner,  there  was  an  implied  in- 
vitation by  the  owner  to  the  public  to  travel 
over  the  space,  and  a  boy  using  the  space  is 
not  a  trespasser  against  the  owner,  but  right- 
fully on  the  land  by  his  permission.  Boutlier 
V.  Maiden  (Mass.)  1918C-910. 

3.  Concurring  Negligence  of  Another  Com- 
pany. 

9.  Though  an  electric  company  did  not  own 
high-tension  wires  below  its  own  on  its  poles,, 
if  the  high-tension  wires  were  placed  under 
its  own  with  its  knowledge,  the  electric  com- 
pany may  be  found  liable  for  death  of  a  boy 
from  shock  when  he  touched  the  electric  com- 
pany's wire,  which  had  broken  and  fallen 
against  the  high-tension  wires  below,  the  in- 
sulation on  which  was  defective,  if  the  elec- 
tric company  failed  to  adopt  such  precau- 
tions as  were  reasonably  necessary  to  avoid 
danger  to  persons  lawfully  traveling  on  the 
highway.  Boutlier  v.  Maiden  (Mass.)  1918C- 
910.  (Annotated) 

10.  If  the  poles  and  wires  of  defendant 
electric  company  are  maintained  without  per- 
mission of  a  town  or  a  city,  and,  without  any 
permission,  it  authorizes  another  electric  com- 
pany to  place  wires  upon  its  poles,  negligence 
of  the  electric  company  is  thereby  shown. 
Boutlier   v.   Maiden    (IMass.)    1918C-910. 

(Annotated) 

11.  Joint  Liability. — ^Where  an  electric 
company  maintains  an  uninsulated  wire  in 
close  proximity  to  the  wires  of  another  com- 
panj'  and  a  foreman  of  the  latter  company 
sends  a  lineman  to  work  on  its  wires  without 
cautioning  him  as  to  the  dangerous  situation 
thu9  created,  both  companies  may  be  held 
liable  for  injuries  received  by  the  lineman 
from  coming  in  contact  with  the  uninsulated 
wire.     Toronto  v.  Lambert  (Can.)   1918D-57. 

(Annotated) 

4.  Actions  for  Injuries. 

a.  Evidence. 

12.  Franchise  regulating  placing  of  wires. — 
A  .provision  in  an  electric  light  company's 
franchise,  requiring  all  wires  upon  poles  to 
be  not  less  than  twenty- five  feet  above  the 
ground  or  street,  and  to  be  placed  at  a  greater 
or  less  height  above  the  ground  whenever 
directed  by  the  city,  has  reference  only  to 
the  stringing  of  wires  on  streets  or  highways 
of  the  city,  and  not  to  the  placing  of  wires 
on  private  property  rented  by  the  owner  at 
different  times  for  amusement  purposes:  and, 
in  an  action  for  injuries  caused  by  the  sag- 
ging of  a  wire  so  placed,  it  is  error  to  permit 
the  franchise  to  be  read  in  evidence.  Lan- 
caster Electric  Light  Co.  v.  Taylor  (Ky.) 
1918C-591. 

b.  Questions  for  Jury. 

13.  Electric  light  wires  charged  with  only 
slightly  over  two  hundred  volts  are  man- 
ifestly dangerous,  and  in  an  action  for  in- 
juries resulting  from  negligent  maintenance 
of  such  wires  over  private  property  the  sub- 


mission to  the  jury  of  the  question  whether 
they  were  dangerous  is  proper.  Lancaster 
Electric  Light  Co.  v.  Taylor  (Ky.)  1918C-591. 

(Annotated) 

14.  In  an  administrator's  action  for  death 
of  her  adopted  son  by  electric  shock  when 
he  touched  an  electric  company's  wire  hang- 
ing in  the  street  beside  the  sidewalk,  question 
of  the  negligence  of  the  company  which 
owned  the  wire  is  held-  to  be  for  the  jury. 
Boutlier  v.  Maiden   (Mass.)    1918C-910. 

(Annotated) 

15.  The  question  whether  the  company 
against  whose  high-tension  wire  the  broken 
wire  fell,  becoming  charged  with  the  deadly 
current,  was  negligent,  is  held  to  be  for  the 
jury.    Boutlier  v.  Maiden  (Mass.)  1918C-910. 

(Annotated) 

16.  In  an  action  against  an  electric  com- 
pany for  the  death  of  plaintiff's  hiLsband,  a 
telephone  lineman,  from  contact  with  defend- 
ant's defectively  insulated  wires,  it  is  held 
on  the  evidence,  that  defendant's  negligence 
was  for  the  jurv.  Ridgewav  v.  Sayre  Elec- 
tric Co.   (Pa.)   1918D-1.  '         (Annotated) 

17.  In  such  case,  w^here  the  break  in  the  in- 
sulation of  defendant's  wire  was  plainly 
visible,  but  where  it  was  not  decedent's  duty 
to  examine  defendant's  wires,  and  he  had  no 
knowledge  that  such  defective  wire  was  car- 
rying a  high  current,  his  contributory  negli- 
gence is  for  the  jurv.  Ridgewav  v.  Savre 
Electric  Co.  (Pa.)  1918D-1.  (Annotated) 

18.  Contributory  negligence. — A  seventeen- 
year-old  boy  is  not  negligent  as  matter 
of  law  because  upon  a  dark  and  stormy 
night  he  fails  to  see  a  broken  electric  wire 
lying  in  the  grass,  or  because  he  mistakenly 
believes  that  sparks  emanating  from  it  are 
fireflies;  the  question  whether  he  failed  to 
exercise  due  care  being  a  question  for  the 
jury.    Boutlier  v.  Maiden  (Mass.)  1918C-910. 


EIXCTRIC  RAILWAYS. 

See  Stbeet  Railways. 


ELEVATORS. 

Excessiveness  of  damages  in  action  for  in- 
juries sustained  by  falling  into  elevator 
shaft,  see  Damages,  10. 

Showing  dangerous  character  of  elevator 
shaft  by  previous  accidents,  see  Evi- 
dence, 6. 

1.  Notice  to  owner  of  negligent  operation. 
— Xegligent  operation  of  an  elevator  in  a 
store,  for  two  years,  by  leaving  the  shaft  door 
open,  charges  the  storekeeper  with  notice  of 
the  manner  of  operation.  Kress  v.  Markline 
(Miss.)    1918E-310. 

2.  Presumption. — Where  a  customer  went 
to  a  counter  to  purchase  a  jardiniere,  the 
presumption  obtains,  in  an  action  for  his 
death  by  falling  down  an  elevator  shaft,  in 
the  absence  of  contrary  evidence,  that  in 
going  behind  the  counter  he  did  so  to  con- 
tinue  his   examination   preparatory   to   pur- 


EMBEZZLEMEXT— EMIXEXT  DOMAIX. 


91 


chasing.     Kress  v.  Markline    (Miss.)    1918E- 
310.  (Annotated) 

3.  The  presumption,  in  tlie  absence  of  con- 
trary evidence,  being  that  the  deceased  custo- 
mer exercised  due  cai'e  and  caution  for  his 
safety,  contributory  negligence  must  be 
pleaded  and  proved  by  defendant  storekeeper 
unless  establislied  by  plaintiff's  testimony. 
Kress   v.   :\Iarkline    (Miss.)    1918E-310. 

(Annotated) 

4.  Sufficiency  of  evidence. — The  evidence  is 
held  to  show  that  a  customer,  while  in  a 
store,  fell  into  an  open  elevator  shaft,  while 
inspecting  goods  preparatory  to  purchase. 
Kress  v.  Markline   (Miss.)    1918E-310. 

(Annotated) 

5.  Instructions. — In  action  for  death  of  cus- 
tomer by  falling  into  elevator  shaft,  defend- 
ant cannot  complain  of  instruction  that,  to 
warrant  verdict  for  plaintiff,  deceased  must 
have  been  killed  while  pursuing  his  intention 
to  purchase  goods  and  inspecting  the  goods; 
that  the  defendant's  negligence  proximately 
caused  the  injury;  that  there  could  be  no  re- 
covery if  deceased's  negligence  solely  caused 
the  injury,  or  if  deceased  was  injured  in  a 
place  to  which  he  was  not  invited,  or  if  a  rea- 
sonable man  would  not  have  anticipated  that 
deceased  would  go  where  he  did;  that  the 
burden  of  proof  was  on  plaintiff  to  show  lack 
of  reasonable  care;  that  damages  should  be 
reduced  in  proportion  to  contributory  negli- 
gence; and  that,  if  the  jury  were  unable  to 
find  with  certainty  whether  negligence  of  de- 
ceased or  of  defendant  caused  the  death,  they 
should  find  for  defendant.  Kress  v.  Markline 
(Miss.)  1918E-310.  (Annotated) 

6.  Question  for  jury. — ^Miere  store  employ- 
ees operated  an  elevator  negligently  for  two 
years,  by  leaving  the  shaft  door  open,  it  is 
a  question  for  the  jury,  in  action  for  a  cus- 
tomer's death  by  falling  down  the  shaft, 
whether  the  storekeeper  was  negligent  in 
failing  properly  to  guard  the  shaft.  Kress 
V.  Markline   (Miss.)   1918E-310. 

(Annotated) 


EMBEZZLEMENT. 

Lien  of  building  and  loan  association  for 
amount  emljezzled  by  member  while  sec- 
retary, see  Building  and  Loan  Associa- 
Tioxs,  4-8. 

1.  Indictment — Date  of  offense. — While,  in 
an  indictment  for  the  statutory  crime  of  em-' 
hezzlement,  a  date  must  be  named  for  the 
commission  of  the  offense,  yet,  when  time  is 
not  material,  it  need  not  be  proved  as  laid, 
but  commission  of  the  crime  on  some  date  be- 
fore the  finding  of  the  indictment,  and  within 
the  statute  of  limitations,  must  be  shown. 
State  V.  Davis  (R.  I.)   1918C-563. 

2.  Bill  of  particulars. — ^In  trial  for  embez- 
zlement, where  the  indictment  charges  the 
offense  in  general  terms,  it  is  proper  for  the 
court  to  order  a  bill  of  particulars.  State  v. 
Davis  (R.  I.)  191SC-563. 

3.  Under  Gen.  Laws  1909,  c.  345,  §  16,  de- 
fining and  penalizing  embezzlement,  and  Gen. 
Laws  1909,  c.  350,  §  2,  defining  and  penaliz- 


ing an  accessory  before  the  fact,  where  a 
part  of  accused's  indictment  as  accessory  con- 
sisted of  the  principal's  indictment  drawn 
under  Gen.  Laws  1909,  c.  345,  §  18,  contain- 
ing allegations  of  the  necessary  elements  of 
the  offense,  stating  the  value  of  the  property 
and  the  time  and  place  of  embezzlement,  but 
not  specifying  any  of  the  particulars  thereof, 
accused  was  not  deprived  of  any  right  under 
Const,  art.  1,  §  10,  ''to  be  informed  of  the 
nature  and  cause  of  the  accusation  against 
him,"  although  said  section  18  permits  at 
the  trial  the  giving  of  evidence  of  all  em- 
bezzlements committed  within  six  months 
next  after  the  time  stated  in  the  indictment 
as  constituting  a  single  offense,  and  although 
ordering  a  bill  of  particulars  under  such  in- 
dictment is  committed  to  the  discretion  of 
the  trial  court.  State  v.  Davis  (R.  I.)  1918C- 
563. 


EMINENT  DOMAIN. 

1.  In  General,  91. 

2.  Who  May  Exercise  Power,  92. 

3.  Uses  for  Which  Property  May  Be  Taken, 

92. 

4.  What  Constitutes  Taking,  92, 

5.  Compensation,  92. 

6.  Condemnation  Proceedings,  92. 

Compensation  to  railroad  company  in  pro- 
ceeding to  compel  common  user  of  bridge, 
see  Railroads,  8-13. 

Municipality  as  party  to  condemnation  pro- 
ceedings as  affecting  right  to  change  of 
venue  because  of  prejudice  or  interest, 
see  Venue,  2-4. 

1.  In  General. 

1.  Strict  compliance  with  requirements. — 
The  right  of  eminent  domain  belongs  to  the 
sovereign  power,  and  statutes  delegating  au- 
thority to  exercise  it  must  be  strictly  con- 
strued. When  it  is  sought  to  take  the 
property  of  an  individual  under  statutes 
granting  such  authority  to  corporations,  sub- 
ject to  conditions  specifically  set  forth,  the 
protection  of  the  constitutional  guaranty  of 
the  right  of  private  property  requires  that 
the  powers  gi-anted  by  the  legislature  be 
strictly  pursued  and  all  of  the  prescribed  con- 
ditions be  performed.  Parkside  Cemetery 
Assoc.  V.  Cleveland,  etc.,  Traction  Co.  (Ohio) 
1918C-1051. 

2.  In  a  proceeding  by  a  railroad  company 
to  appropriate  land  for  its  use,  it  is  incum- 
bent on  the  company  to  prove  its  incorpora- 
tion according  to  law,  including  the  due  and 
legal  election  of  directors,  its  right  to  make 
the  appropriation,  its  inability  to  agree  with 

«  the  owners  and  the  necessity  for  the  appro- 
priation. By  the  provisions  of  section  11046, 
General  Code,  the  determination  by  the  court 
of  those  questions  favorably  to  the  company 
is  made  jurisdictional.  Parkside  Cemetery 
Assoc.  V.  Cleveland,  etc..  Traction  Co.  (Ohio) 
1918C-1051.  (Annotated) 


92 


ANK  CAS.  DIGEST  (1918C-1918E), 


2.  Who  May  Exercise  Power. 

3.  "Diunmy"  corporation. — Section  8759, 
General  Code,  authorizes  a  railroad  company 
to  appropriate  land  deemed  necessary  for  its 
railroad,  including  necessary  sidetracks,  etc. 
There  is  no  authority  for  a  railroad  company 
to  appropriate  land  in  which  it  does  not  in- 
tend to  have  any  real  or  beneficial  interest 
or  use,  but  which  it  is  attempting  as  a  '"dum- 
my" corporation  to  appropriate  for  the  sole 
use  and  benefit  of  another  company.  Park- 
side  Cemetery  Assoc,  v.  Cleveland,  etc..  Trac- 
tion Co.  (Ohio)  1918C-1051. 

4.  Municipality, — ^Under  the  charter  of  the 
city  of  St.  Paul,  the  council  may  condemn  and 
take  land  and  structures  thereon,  or  as  much 
thereof  as  may  be  necessary  for  the  purposes 
of  the  improvement.  Sullnold  v.  St.  Paul 
(Minn.)   1918E-835. 

3.  Uses  for  Which  Property  May  Be  Taken. 

5.  Public  library.— Under  Act  [March  26, 
1903  (P.  L.  63),  as  amended  by  Act  March 
14,  1907  (P.  L.  12),  authorizing  the  city  of 
Philadelphia  to  condemn  real  estate  for  neces- 
sary "municipal  buildings,"  fire  engine  houses, 
gas  or  electric  works,  and  hospitals,  and  also 
for  land  to  construct  workhouses,  houses  of 
detention,  etc.,  and  sewage  disposal  plants, 
the  city  is  without  authority  to  condemn 
land  for  a  public  library;  a  public  library  not 
being  a  necessary  "municipal  building." 
Philadelphia's  Petition  (Pa.)   1918E-120. 

(Annotated) 

6.  Railroad  sidetrack. — ^Where  a  sidetrack 
becomes  a  part  of  the  trackage  of  a  railroad 
to  be  operated  as  a  part  of  its  railway  sys- 
tem, the  taking  of  property  therefor  is  a  tak- 
ing for  a  public  purpose.  Ochs  v.  Chicago, 
etc.,  R.  Co.  (Minn.)  1918E-337. 

4.  What  Constitutes  Taking  of  Property. 

7.  Public  lavatory  in  street. — Under  a  stat- 
ute giving  a  right  to  compensation  where 
land  is  "injuriously  affected"  by  the  exercise 
of  the  power  of  eminent  domain,  an  owner  of 
land  abutting  on  a  street  is  entitled  to  com- 
pensation for  the  depreciation  in  the  value 
thereof  from  the  construction  by  the  munic- 
ipality of  a  public  lavatory  in  the  street. 
Toronto  v.  J.  F.  Brown  Co.  (Can.)  1918D-888. 

(Annotated) 

5.  Compensation. 

8.  Taking  for  military  camp. — ^Where  the 
United  States,  which  has  taken  possession  of 
Alabama  land  for  a  military  camp,  thereafter 
begins  condemnation  proceedings  under  Act 
July  2,  1917,  c.  35,  40  Stat.  241  (Fed.  St. 
Ann.  Pamph.  Supp.  No.  12,  p.  112),  which 
makes  the  state  laws  applicable,  the  owners 
are  entitled  to  recover  as  compensation  the 
value  of  the  property  at  the  time  of  the  ac- 
tual taking,  together  with  interest  at  the 
legal  rate  fixed  by  the  state  on  the  amount 
fixed,  which  should  include  the  value  of  grow- 
ing crops,  as  well  as  diminution  in  the  value 
of  other  lands  of  the  owners  contiguous  to 


those  appropriated.    U.  S.  v.  First  Nat.  Bank 
(U.  S.)   1918E-36.  (Annotated) 

9.  ^Vhere  the  landowner  receives  fair,  rea- 
sonable, adequate,  and  just  compensation  for 
the  condemnation  of  his  land,  the  constitu- 
tional guaranties  are  satisfied,  for  it  is  not 
intended  that  tlie  compensation  shall  extend 
beyond  the  loss  or  injury.  U.  S.  v.  First  Nat. 
Bank  (U.  S.)  1918E-36. 

10.  Valuation  of  lands. — Under  the  Ala- 
bama Laws  (Code  1907,  §§  3860,  3887),  a 
landowner,  whose  property  is  condemned  for 
a  public  purpose,  is  entitled  only  to  "just 
compensation,"  which  means  equitable  com- 
pensation, and  is  confined  to  the  present  value 
of  the  land.  U.  S.  v.  First  Nat.  Bank  (U.  S.) 
1918E-36. 

11.  Adaptability  to  particular  purpose. — 
Where  lands  are  condemned,  the  owner  is  en- 
titled to  compensation  on  the  basis  of  the 
value  of  the  land  for  the  purposes  to  which 
it  might  have  been  applied,  having  regard  to 
the  existing  business  conditions  in  the  com- 
munity, and  not  simply  with  reference  to  the 
productiveness  in  the  condition  in  which  the 
owner  saw  fit  to  leave  it.  U.  S.  v.  First  Nat. 
Bank  (U.  S.)  1918E-36. 

12.  Duty  to  minimize  damage. — Wliere 
lands  are  condemned  and  growing  crops  de- 
stroyed, it  is  the  duty  of  the  owner,  if  he  has 
the  opportunity,  to  care  for  such  perishable 
property  and  minimize  the  damages  as  far 
as  reasonably  possible.  U.  S.  v.  First  Nat. 
Bank  (U.  S.)  1918E-36. 

13.  Valuation  for  taxation  as  evidence  of 
value. — In  assessing  damages  for  the  condem- 
nation of  land,  the  commissioners  may  con- 
sider the  value  at  which  the  owner  has  as- 
sesseVl  the  land  for  taxation;  but  such  assess- 
ment is  not  conclusive.  U.  S.  v.  First  Nat. 
Bank  (U.  S.)  1918E-36. 

14.  Offsetting  enhancement  of  other  prop- 
erty.— Where  the  government  takes  posses- 
sion of  lands  for  a  military  reservation  be- 
fore condemnation  proceedings,  enhancement 
in  value  of  the  remaining  lands  cannot  be 
offset  against  the  value  of  that  taken,  but 
the  owners  are  not  entitled  to  receive  any  in- 
creased valuation  on  account  of  improve- 
ments made  or  proposed  to  be  made  by  the 
government.  U.  S.  v.  First  Nat.  Bank  (U.  S.) 
1918E-36. 

6.  Condemnation  Proceedings. 

15.  Discontinuance  by  condemnor. — A  water 
company,  organized  under  Priv.  &  Sp.  Laws 
1895,  c.  125,  §  4,  as  amended  by  Priv.  & 
Sp.  Laws  1911,  c.  256,  §  4,  requiring  it  to  pay 
damages  for  taking  of  lands  to  be  ascertained 
in  the  manner  prescribed  by  law,  in  case  of 
damage  by  laying  out  highways,  cannot, 
under  Rev.  St.  1903,  c.  23,  §  7,  postponing 
payment  of  damages  until  the  actual  taking 
possession    of    the    land    in    highway    cases. 

'  abandon  the  proceeding  of  condemnation,  the 
provision  of  Act  1911  providing  only  the 
tribimal  and  method  of  procedure  in  ascer- 
taining damage.  York  Shore  Water  Co.  v. 
Card   (Me.)   1918D-945.  (Annotated) 

16.  A  water  company  having  begun  pro- 
ceedings   to    condemn    land    for    its    site,   an> 


EMPLOYERS— ESTOPPEL. 


93 


award  of  damages  liaving  been  made  and  con- 
firmed, without  appeal  therefrom,  cannot 
thereafter  abandon  the  proceedings,  the  prop- 
erty owner  having  acquired  a  vested  interest 
in  the  award.  York  Shore  Water  Co.  v.  Card 
(Me.)  1918D-945.  (Annotated) 


EMPI.OYERS. 

See  Hastes  and  Sebvamt. 

ESCPI.OYERS'    I.IABIUTY   ACTS. 

See  Mastb:b  and  Sebvaxt,  4,  5,  35-38. 

EMPI.OYERS'       LJABILITY      INSUR- 
ANCE. 

See  Insubance,  30-38. 

ENACTMENT. 

Of  statutes,  see  Statutes,  4-6. 

ENCUMBRANCES. 

Covenant  against,  see  Deeds,   11,  12. 

ENDLESS    CHAIN. 

Relief  of  party  to  endless  chain  contract,  see 

CONTBACTS,   20. 

ENEMY. 

Alien  enemies,  see  Aliexs,  1-7. 

ENTIRETIES. 

Estate  by  entireties  as  subject  to  execution, 
see  ExECUTioxs,  1. 

EQUIPMENT.  * 

Lack  of  statutory  equipment  of  automobile, 
see  Automobiles,  23. 

EQUITY. 

Equitable  relief  to  corporate  stockholders, 
see  Cobpobations,  15-17. 

Power  of  court  of  equity  to  change  or  modify 
trust,  see  Tbusts  and  Tbtjstees,  35-38. 

Protection  of  minority  stockholder,  see  Cob- 
pobations, 42. 

Suit  in  equity  to  prevent  diversion  of  park 
to  improper  use,  see  Paeks  and 
Squaees,  1. 

1.  Answer  taken  as  true. — Where  com- 
plainant, within  the  time  allowed  by  law  for 
taking   testimonv,   sets   down   the   cause   for 


hearing  on  bill  and  answer,  the  answer  is, 
under  Code  1906,  §  603,  to  be  taken  as  true. 
New  Standard  Club  v.  McRaven  (Miss.) 
1918E-274. 

2.  Right  to  dismiss  bill  where  cross  bill 
filed. — An  order  permitting  the  voluntary 
dismissal  of  plaintiffs  bill  before  trial  as  of 
course,  not  referring  to  a  cross  bill  of  de- 
fendant, is  not  reversible  error,  where  no 
probable  legal  prejudice  therefrom  to  de- 
fendant's rights  appears;  such  order  not 
carrying  with  it  the  cross  bill,  which  still 
remains  to  be  disposed  of  if  any  affirmative 
relief  is  sought  thereby.  Hyde  Park  Lumber 
Co.  v.  Hunt   (Vt.)   1918E-1183. 

(Annotated) 

3.  Relevancy  of  supplemental  bill. — Plain- 
tifi"  and  defendant  agreed  in  writing  for  re- 
scission of  a  contract  to  sell  land  and  for  an 
arbitration  of  the  amount  defendant  should 
pay  plaintiff  as  reimbursement  for  pay- 
ments on  the  purchase  price  and  improve- 
ments, after  deducting  rents.  What  pur- 
ported to  be  an  award  of  the  arbitrators 
was  filed  with  the  register,  but  the  court 
refused  to  enter  it  as  its  decree,  there  being 
no  preliminary  order  authorizing  it.  Plain- 
tiff' thereupon  filed  a  supplemental  bill  set- 
ting up  the  agreement  and  award  as  a  com- 
mon-law arbitration,  and  prayed  the  court 
to  put  it  into  effect  by  its  final  decree  in  the 
cause.  It  is  held  that  the  supplemental  bill 
proceeded  upon  the  same  equity  as  the  orig- 
inal bill,  and  was  properly  allowed  as  a 
continuation  thereof.  Black  v.  Woodruff 
(Ala.)   1918C-969. 


ERROR. 

See  Appeal  and  Ebbob. 


ESTATES. 

See  Deeds;  Doweb;  Easeiients;  Life  Es- 
tates; Remaindebs  and  Revebsions; 
Tbusts  and  Teustees;  Wills. 


ESTOPPEL. 

Of  building  and  loan  association  to  claim 
lien  on  stock  of  members,  see  Building 
AND  Loan  Associations,  8. 

Of  carrier  to  collect  rate  different  from  that 
stated  in  bill  of  lading,  see  Carbiebs  of 
Goods,  10. 

Of  factor  to  attack  title  of  consignor,  see 
Factobs,  1-3. 

Of  lessor  to  deny  insurable  interest  of  lessee, 
see  FiBE  Insubanoe,  3. 

Of  wife  to  deny  validity  of  contract  of  em- 
ployment of  attorney  by  husband,  see 
Attobneys.  2. 

To  attack  award  of  arbitrators,  see  Abbbi- 

TRATION  AND  AWABD,   6. 

To  declare  forfeiture  of  membership  in  bene- 
ficial association,  see  Beneficial  Asso- 
ciations, 16. 

To  deny  corporate  existence,  see  CobpobIa- 
tions,  3. 


94 


ANN.  CAS.  DIGEST  (a918C-1918E). 


To  deny  title  of  husband,  see  Husband  axd 
Wife,  23. 

To  dispute  authority  of  court  to  grant  con- 
tinuance, see  Appeal  and  Erbob,  59. 

To  enforce  civil  liability  of  corporate  ofiicers, 

see   COBEOBATIOXS,    10. 

1.  Proof  of  facts  creating. — An  estoppel 
in  pais  may  not  be  predicated  on  a  possible 
inference.     Jewell  v.  Nuhn   (la.)   191SD-356. 

2.  Inconsistent  position  in  litigation. — 
Where  the  widow  of  a  railroad  employee 
killed  in  service,  suing  for  his  death  under 
Code  1906,  §  721,  as  his  lawful  widow,  asks 
for  the  usual  instruction  that  she  was  en- 
titled to  recover  such  damages  as  the  jury 
might  determine,  'taking  into  consideration 
all  the  damages  to  the  decedent  and  all  dam- 
ages of  every  kind  to  any  and  all  parties 
interested  in  this  suit,"  she  concedes  the 
legitimacy  of  the  children  of  decedent  by  his 
former  marriage  by  seeking  to  enlarge  her 
recovery  on  their  account,  and  cannot  deny 
their  right  to  an  undivided  interest  in  the 
proceeds  of  the  suit  on  the  ground  that  they 
are  illegitimate;  their  right  to  the  fund  being 
based  on  their  judgment  against  the  road, 
and  not  on  the  judgment  alone  recovered  by 
the  widow.  Howard  v.  Kelly  (Miss.)  1918E- 
1230. 


EVICTION. 

Failure  to  furnish  heat  as  constructive  evic* 
tion,  see  Landlobd  and  Texaj«t,  18. 


EVIBEXCE. 

1.  Judicial   Notice,  94. 

2.  Relevancy  and  Admissibility  in  General, 

95. 

3.  Hearsay  Evidence,   95. 

4.  Experimental  Evidence,   95. 

5.  Expert  and  Opinion  Evidence: 

a.  Expert    Evidence,  95. 

b.  Nonexpert  Opinion,  95. 

6.  Documentary  Evidence,  96. 

7.  Photographs    as    Evidence,    96. 

8.  Parol  Evidence  to  Vary  Written  Instm- 

ments,    96. 

9.  Presumptions,  97. 

10.  Burden  of  Proof,  97. 

11.  Weight  and  SuflSciency  of  Evidence,  98. 

12.  Legislative    Power    over    Rules    of   Evi» 

dence,   98. 

See  Admissions  and  Bectlabations  ;  Ap- 
peal AND  EBBOR;  CRUIINAL  LaW  ;  DEPO- 
SITIONS; Dying  Declabations  ;  Wit- 
nesses. 

As  to  capacity  of  testator,  see  Wills,  6-8. 

As  to  revocation  of  will,  see  Wills,  14-16. 

Conformity  of   instructions  to  evidence,  see 

INSTBUCTIONS,   7-10. 

Credibility,  impeachment  and  corroboration 
of  witnesses,  see  Witnesses,  13-18. 


Examination  of  witnesses,  see  Witnesses, 
8-12. 

In  aid  of  construction  of  wills,  see  Wills, 
29-34. 

Incorporating  in  record  on  appeal,  see  Ap- 
peal AND  Error,  16,  18-21,  28,  29. 

In  probate  of  wills,  see  Wills,  18-21. 

In  proceeding  against  railroad  to  compel 
common  user  of  bridge,  see  Railroads, 

10,  11. 

In  suit  to  cancel  deed  to  school  lands  pur- 
chased from  state,  see  Public  Lands,  19, 
20. 

In  suit  to  set  aside  award,  see  Abbitbation 
AND  Award,  7-9. 

Newly  discovered  evidence  as  ground  for  new 
trial,  see  New  Trial,  4. 

Objections,  see  Appeal  and  Error,  97. 

Of  foreign  judgment,  see  Conflict  of  Laws, 
5. 

Of  undue  influence  of  testator,  see  Wills,  9. 

Parol  evidence  to  establish  trust,  see  Trusts 
AND  Trustees,  7-13. 

Parol  evidence  to  vary  release,  see  Release 
and  Discharge,  8. 

Prejudicial  errors  in  relation  to  evidence,  see 
Appeal  and  Error,  70-82. 

Particular  actions  and  actions  by  and  against 
particular  persons,  and  for  particular 
causes — 

See  Agency,  7,  11,  14;  Automobiles,  4,  6-9, 

11,  18;  Brokers,  7,  8;  Carriers  of 
Goods,  16-19;  Conspiracy,  1,  2;  Cor- 
porations, 11-14,  17;  Criminal  Law, 
14-21;  Damages,  4;  Death,  1;  Death 
BY  Wrongful  Act,  10-16,  19;  Deed,  14; 
Dismissal  and  Nonsuit,  2,  3;  Dying 
Declarations;  Electricity,  11;  Ele- 
vators, 2-4;  False  Pretense.s,  3,  4; 
Fire  Insurance,  18-20;  Food,  2-4:  For- 
mer .Jeopardy,  2;  Fraud,  7-9,  14,  15; 
Guaranty,  5;  Homicide,  4-11;  Hus- 
band and  Wife,  19,  20;  Independent 
Contractors,  6;  Injunctions,  19,  20; 
Intoxicating  Liquors,  10-16;  Libel 
AND  Slander,  48-54;  Life  Insurance, 
12-17;  Ix)ST  Instruments,  2-5;  Mar- 
biage,  6-8;  ;Masteb  and  Sebvant,  33, 
34,  38;  Mines  and  Minerals,  2;  Mu- 
nicipal Corporations,  34;  Negligence, 

*  6-8;  Physicians  and  Surgeons,  7,  8,  13, 
14;  Railroads,  22;  Rescission,  Can- 
cellation AND  Reformation,  12;  Tele- 
graphs and  Telephones,  5,  12;  Thea- 
ters AND  Amusements,  10-11;  Vendor 
and  Purchaser,  21-22;  Warranty,  3; 
Waterworks  and  Water  Companies, 
7-10;  Weapons^  3. 

1.  Judicial  Notice. 

1.  Fact  of  unexplained  explosions. — The 
court  may  take  judicial  notice  of  the  fact 
that  disastrous  explosions  liave  occurred  for 
which  no  satisfactory  explanations  have  ever 
been  offered.  Pierce  Oil  Corp.  v.  Hope 
(Ark.)    1918E-143. 

2.  Tendency  of  metal  to  attract  lightning. 
— ^It  is  not  a  known  law  of  nature  of  which 
the  court  may  take  judicial  notice  that  met- 
als such  as  iron  and  steel  possess  properties 


EVIDENCE. 


M 


which  perceptibly  attract  lightning  and  en- 
hance the  danger  from  lightning  within  the 
sphere  of  their  influence.  Wiggins  v.  In- 
dustrial Ace.  Board   (Mont.)    1918E-1164. 

3.  Rules  of  court. — The  rules  of  a  munic- 
ipal court  can  be  taken  cognizance  of  on  an 
appeal  to  the  supreme  court  only  -when  they 
are  included  in  a  bill  of  exceptions.  Scovill 
Mfg.   Co.   V.   Cassidy    (111.)    1918E-602. 

4.  Mortality  tables. — In  the  absence  of 
evidence  going  to  establish  the  probable 
duration  of  life  or  expectancy  of  one  whose 
death  resulted  from  the  negligent  act  of 
another,  the  court  may  take  judicial  notice 
of  any  standard  mortality  tables  and  in- 
struct the  jury  as  to  the  facts  stated  there- 
in. While  the  statute  makes  the  Carlisle 
Mortality  Tables  admissible  as  evidence  of 
such  fact,  it  does  not  preclude  the  court 
from  taking  judicial  notice  of  such  tables  as 
are  generally  used  to  establish  life  expec- 
tancr.  Chambers  v.  ^Minneapolis,  etc.  R.  Co. 
(X.  b.)    1918C~9.54. 

5.  Labor  conditions  of  women. — It  is  a 
matter  of  common  knowledge,  of  which  the 
court  will  take  judicial  notice,  that  condi- 
tiiiis  have  arisen  with  reference  to  the  em- 
jjloynient  of  women  which  have  made  it 
necessary  for  many  of  the  states  to  appoint 
commissions  to  make  a  detailed  investiga- 
tion of  the  subject  of  women's  work  and 
their  wages.  State  v.  Crowe  (Ark.)  19181)- 
4<iO. 

2.  Relevancy  and  Admissibility  in   General. 

6.  Showing  dangerous  character  of  place 
by  previous  accidents. — In  action  for  death 
of  customer  by  falling  down  elevator  shaft 
in  store,  evidence  that  the  elevator  door 
had  on  former  occasions  been  left  open,  and 
other  people  had  nearly  been  hurt,  is  ad- 
missible as  tending  to  show  tlie  dangerous 
character  of  the  place.  Kress  v.  Markline 
(Miss.)    1918E-310. 

7.  Proving  value. — Evidence  of  a  dealer 
in  automobiles  at  the  cotmty  seat,  only  a 
few  miles  from  the  town  in  which  the  cause 
of  action  arose,  as  to  the  value  of  a  certain 
kind  of  automobile,  is  admissible;  the  price 
of  such  a  common  article  of  trade  varying 
only  as  to  freight  charges  in  such  a  restrict- 
ed territory.  Smead  v.  Stearns  (la.)  1918G- 
745. 

8.  As  to  matter  of  law. — Evidence  as  to 
the  legal  effect  upon  the  title  of  the  deliv- 
ery of  the  bill  of  lading  to  the  buyer,  and 
of  provision  for  the  weighing  and  analyzing 
of  the  fertilizer,  being  purely  questions  of 
law,  is  properlv  excluded.  Agri  Mfg.  Co. 
V.   Atlantic   Fertilizer   Co.    (Md.)    1918D-396. 

3.  Hearsay  Evidence. 

9.  Testimony  of  deceased  witness. — Where 
a  witness  who  testified  at  a  former  trial 
has  since  died,  his  testimony  may  be  re- 
produced on  proof  of  his  death.  McCue  v. 
State   (Tex.)   1918C-674. 

4.  Experimental  Evidence. 

10.  Speed  of  train. — In  an  action  for  in- 


juries sustained  while  riding  in  the  auto- 
mobile of  defendant's  intestate,  when  he  at- 
tempted to  pass  in  front  of  an  approaching 
train,  the  engineer  testified  that  the  train 
was  running  eight  or  ten  miles  an  hour,  that 
this  was  the  usual  speed  at  that  crossing, 
and  that  it  was  necessary  not  to  run  at  a 
gi-eater  speed  in  ord«r  to  stop  at  a  nearby 
station.  A  civil  engineer  was  asked  if  he 
had  timed  a  train  making  the  ordinary  stop 
at  that  station  to  know  whether  it  could 
make  its  ordinary  stop  at  a  rate  of  more 
than  ten  miles  an  hour  on  the  crossing.  It 
is  held  that  the  exclusion  of  this  question 
was  not  error,  as  it  could  only  have  con- 
tradicted the  engineer's  opinion  as  to  the 
necessary  limit  of  speed  in  order  to  make 
the  stop,  which  was  immaterial,  and  more- 
over the  attempt  to  pass  in  front  of  the 
train  would  have  been  equally  reprehensible 
whether  the  train  was  running  ten  miles  an 
hour  or  faster.  Avery  v.  Thompson  (Me.) 
1918E-1122. 

11.  The  experimental  observation  which 
the  witness  was  asked  to  narrate  having  been 
made  at  a  subsequent  date,  and  not  confined 
to  the  particular  train,  is  within  the  exclud- 
ing rule  of  res  inter  alios  acta.  Avery  v. 
Thompson    (Me.)    1918E-1122. 

5.  Expert  and  Opinion  Evidence. 

a.    Expert    Evidence. 

1S2.  Another  opinion  as  basis. — It  is  not 
proper  to  predicate  an  expert  opinion  upon 
another,  as  they  must  be  based  either  iipon 
facts  or  facts  assumed  to  be  true.  Hays 
V.  Hogan   (Mo.)   1918E-1127. 

13.  Ultimate  question  for  jury. — In  a  will 
contest,  it  is  not  error  to  sustain  objections 
to  questions  of  a  physician  as  to  whether 
one  in  the  stages  of  senile  dementia  would 
have  capacity  to  know  the  natural  objects 
of  his  bounty.  Walsh's  Estate  (Mich.) 
1918E-217. 

14.  Operation  of  X-ray  machine. — One 
qualified  to  testify  as  an  expert  in  the  use 
of  X-ray  machines  may,  from  the  result 
produced,  give  his  opinion  whether  the  ma- 
chine was  operated  in  a  proper  manner.  Holt 
V.  Ten  Broeck    (Minn.)   1918E-256. 

b.  Nonexpert  Opinion, 

15.  Capacity  of  testator. — Since  sanity  is 
normal,  it  is  not  error  in  a  will  contest  to 
admit  opinion  evidence  of  one  who  has 
transacted  business  with  testator  that  testa- 
tor seemed  to  have  capacity  to  attend  to 
his  business  affairs.  Walsh's  Estate  (Mich.) 
1918E-217. 

16.  Facts  incapable  of  statement. — Where 
the  truth  must  ultimately  rest  in  inference 
or  opinion,  and  it  is  impossible  by  descrip- 
tion to  reproduce  the  things  seen  by  the 
witness  so  as  to  enable  jurors  to  compre- 
hend them  as  they  are  comprehended  by  one 
who  has  had  the  benefit  of  personal  obser- 
vation, it  is  proper  to  receive  opinion  evi- 
dence." An  opinion  of  one  who  saw  marks  on 
plaintifi"'s  thumb  that  the  marks  were  teeth- 
marks  or  were  caused  by  a  bite,  held  admis- 


96 


ANN.  CAS.  DIGEST  (1018C-1918E). 


sible  within  this  rule,     ratterson  v.  Blatti 
(Minn.)   1918D-63. 

6.  Documentary  Evidence. 

17.  Proof  of  foreign  will. — Under  Shan- 
non's Code,  §  3914,  providing  that  wills 
executed  in  other  states,  etc.,  siiall  be  proved 
according  to  the  laws  of  this  state,  and  cer- 
tified in  the  manner  prescribed  by  Act  Cong. 
May  26,  1790,  c.  11,  1  Stat.  122  (U.  S. 
Comp.  St.  1913,  §  1519),  and  section  3915, 
providing  that  a  copy  of  a  will  so  certified 
shall  be  registered  in  the  county  where  the 
land  lies,  and  a  copy  from  the  books  of  the 
register,  duly  certified,  shall  be  evidence,  a 
certified  copy  of  a  foreign  will  of  one  of 
plaintiffs'  predecessors  in  title  which  was 
probated  by  the  proper  officer  in  tlie  for- 
eign state,  and  a  duly  certified  copy  of 
which,  with  the  certificate  of  probate,  was 
recorded  in  Tennessee,  is  admissible.  Fielder 
V.  Pemberton   (Tenn.)    1918E-905. 

18.  Under  Shannon's  Code,  §  3914,  provid- 
ing that  a  foreign  will  shall  be  proved  ac- 
cording to  the  laws  of  this  state,  and  section 
3904,  providing  that  a  will  not  contested 
may  be  proved  by  one  of  the  subscribing 
witnesses,  a  certified  copy  of  a  foreign  will, 
proved  by  only  one  witness,  is  admissible. 
Fielder  v.  Pemberton  (Tenn.)   1918E-905. 

19.  A  certified  copy  of  a  foreign  will,  set- 
ting forth  the  entire  will  verbatim,  the  affi- 
davit of  subscribing  witness,  oath  and  quali- 
fication of  executor,  and  certificate  of  sur- 
rogate that  above  constituted  the  will  and 
probate  thereof,  upon  which  letters  tes- 
tamentary issued  to  the  executor,  sufficiently 
shows  the  probate  of  the  will.  Fielder  v. 
Pemberton    (Tenn.)    1918E-905. 

20.  Proof  of  .  ancient  deed. — A  certified 
copy  of  an  ancient  deed,  which  had  been  on 
record  for  more  than  thirty  years,  without 
the  slightest  suspicion  or  question,  was  ad- 
missible, and  had  the  same  probative  value 
as  proof  of  recitals  as  the  original  would 
have  had  if  produced.  Fielder  v.  Pember- 
ton (Tenn.)  1918E-905. 

21.  Record  of  marriage  license. — The  rec- 
ord of  a  marriage  license  issued  to  in- 
sured, stating  he  was  over  twenty-one,  is 
admissible  on  the  issue  of  his  age,  it  hav- 
ing been  the  recorder's  duty  under  a  stat- 
ute not  to  issue  a  license  to  him  if  under 
that  age,  except  on  consent  of  another,  and 
to  state  in  the  license  whether  he  was  of 
age,  and,  if  not,  the  name  of  the  person 
consenting.  Armstrong  v.  Modern  Woodmen 
of   America    (Wash.)  .1918E-263. 

(Annotated) 

22.  Physician's  death  certificate. — ^In  an 
action  against  a  fraternal  benefit  insurance 
association,  that  part  of  the  death  certificate 
of  the  physician  who  attended  decedent  in 
her  last  illness,  which,  after  stating  that  the 
death  was  caused  by  peritonitis,  went  on  to 
state  the  contributory  cause  thereof  was 
abortion,  was  not  inadmissible  as  hearsay, 
although  the  remainder  of  the  certificate 
reading,  "said  by  decedent  to  have  befen  per- 
formed by  Dr.  -,"  was  properly  ex- 
cluded, since  a  fair  interpretation  of  the  cer- 


tificate was  that  the  contributing  cause  of 
death  is  primarily  within  the  knowledge  of 
the  physician,  and  is  not  hearsay.  Gil- 
christ v.  Mystic  Workers,  etc.  (Mich.)  1918C- 
756.  (Annotated) 

23.  Account  books. — Point  one  of  the  syl- 
labus in  West  Virginia  Architects  &  Build- 
ers V.  Stewart,  68  W.  Va.  506,  reaffirmed  and 
applied,  as  justifying  the  admissibility  of 
plaintiff's  books  of  account  in  evidence  to 
the  jury.  Parkersburg,  etc.  Sand  Co.  v. 
Smith  (W.  Va.)  1918E-449. 

7.   Photographs  as  Evidence. 

24.  Common  photograph. — Common  piioto- 
graphs  may  be  proved  and  used  in  evidence 
in  the  same  manner  as  maps  or  other  dia- 
grams; and  they  may  be  verified  either  by 
the  testimony  of  the  person  who  took  them 
or  by  the  testimony  of  others  who  can  state 
that  the  object  sought  to  be  shown  is  fairly 
represented  thereby.  Davis  v.  Dunn  (Vt.) 
1918D-994. 

25.  Photographs  of  the  plaintiff's  arm, 
properly  identified,  are  admissible  to  prove 
identity  of  other  photographs  showing  a 
fracture,  on  which  the  plaintiff  relied,  by 
showing  a  peculiar  formation  not  usual  in 
the  arms  of  others.  Davis  v.  Dunn  (Vt.) 
1918D-994. 

26.  X-ray  photograph. — While  under  P.  S. 
1596,  a  party  has  the  right  to  examine  the 
adverse  party,  he  cannot  examine  him  as  to 
an  X-ray  photographic  plate  not  verified  or 
authenticated  by  some  evidence  other  than 
itself,  since  it  is  inadmissible  as  evidence 
until  identified.  Davis  v.  Dunn  (Vt.)  1918D- 
994.  (Annotated) 

27.  Comparison  of  X-ray  and  common 
photograph. — Where  the  plaintiff  sought  to 
show  malpractice  by  X-ray  photographs  of 
her  arm,  it  was  not  error  to  exclude  photo- 
graphs of  an  alleged  normal  arm,  not  ma- 
terial to  the  case,  but  which  would  have 
raised  collateral  issues,  and  was  of  an  ex- 
periment outside  the  case;  admission  of  such 
evidence  being  within  the  discretion  of  the 
court.     Davis  v.  Dunn  (Vt.)   1918D-994. 

8.  Parol  Evidence  to  Vary  Written  Instru- 
ments. 

28.  Where  a  stock  subscription  contract 
recites  that  the  subscribers  each  agree  to  pay 
for  the  number  of  shares  of  stock  set  op- 
posite their  names,  parol  evidence  of  an 
agreement  that  no  assessment  would  ever  be 
levied  on  the  unpaid  stock,  and  that  they 
would  never  be  required  to  pay  any  more 
than  what  they  had  already  paid,  is  inad- 
missible. Bergman  v.  Evans  (Wash.)  1918C- 
849.  (Annotated) 

29.  Where  a  sale  contract  provides  that 
the  buyer  may  have  each  shipment  analyzed 
before  accepting  it,  evidence  of  a  trade  cus- 
tom, that  such  provision  will  not  prevent 
title  passing,  is  inadmissible.  Agri  Mfg. 
Co.  V.  Atlantic  Fertilizer  Co.  (Md.)  191 8D- 
396. 

30.  Parol  evidence  to  explain  writing.— 
The  rule  excluding  evidence  of  an  independ- 
ent, contemporaneous,  oral  agreement  relat- 


evide:n^ce. 


97 


ing  to  the  subject  of  a  written  contract 
inconsistent  with  the  terms  of  the  hUter, 
does  not  conflict  with  the  rule  permitting 
evidence  relating  to  the  subject-matter  with 
which  the  parties  dealt  and  the  object  they 
sought  to  accomplish  as  shown  by  preceding 
negotiations,  not  to  vary  the  contract,  but  to 
aid  in  its  construction  and  make  plain  in 
what  sense  the  parties  used  the  language. 
Chaplin  v.   Griffin    (Pa.)    1918C-787. 

31.  Where  a  written  contract  between  a 
trustee  and  eight  stockholders  recites  the 
ownership  of  the  shares  which  are  then  in  the 
name  of  the  trustee,  but  does  not  indicate 
that  they  are  owned  in  other  than  equal 
amounts  by  the  parties,  and  authorizes  the 
trustee  to  pledge  the  stock  for  a  loan  until 
a  majority  shall  decide  to  dissolve  the 
pool  and  provides  that  the  owners  shall  take 
up  their  pro  rata  shares  of  the  loan  and  pay 
the  amount  due  on  the  stock  when  the  pool 
shall  be  dissolved,  in  an  action  by  the  trus- 
tee against  one  of  the  eight  members  after 
dissolution  of  the  pool  for  one-eighth  of  the 
loan,  an  affidavit  of  defense,  setting  up  a 
parol  understanding  that  the  pro  rata  lia- 
bility was  to  be  based  on  the  number  of 
shares  in  the  company  which  each  of  the 
parties  owned,  and  defendant  owned  less 
than  one-eighth  of  the  shares,  and  averring 
tender  of  plaintiff's  share,  is  sufficient  as 
against  a  rule  for  judgment.  Chaplin  v. 
Griffin    (Pa.)    1918C-787. 

32.  Showing  intent  from  surrounding  cir- 
cumstances.— While  an  option  timber  con- 
tract speaks  for  itself  and  cannot  be  varied 
by  parol  evidence  as  far  as  its  contents  are 
<;oncerned,  where  it  is  silent  as  to  the  time 
when  the  purchaser  was  to  commence  to  cut 
the  timber,  the  circumstances  surrounding 
the  parties  at  the  time  it  was  made  can  be 
detailed,  and  anything  that  took  place  at 
that  time  which  would  tend  to  show  what 
the  parties  intended  as  to  the  time  in  which 
the  cutting  was  to  commence  would  be  com- 
petent to  be  considered  for  what  it  was 
worth.  Berrv  v.  ilarion  County  Lumber  Co. 
(S.  C.)   1918E-877. 

33.  Impeachment  of  conveyance. — Testi- 
mony of  a  witness  of  statements  of  grantor 
six  years  after  making  deed  that  the  deed 
was  not  to  give  title  is  incompetent:  for 
parol  testimony  as  to  a  declaration  of  the 
grantor  cannot  invalidate  his  prior  convey- 
ance. Campbell  v.  Sigmon  (N.  C.)  1918C- 
40. 

34.  Contradicting  recitals  of.  deed. — Testi- 
mony of  a  witness  as  to  statements  of  a 
grantor  one  or  two  Aveeks  prior  to  the  mak- 
ing of  the  deed  that  he  was  trying  to  get 
the  grantee  away  from  his  home  and  tried 
to  fix  a  plan  to  do  so  is  inadmissible  to 
contradict  the  recital  of  consideration  in  the 
deed.  Campbell  v.  Sigmon  (N.  C.)  1918C- 
40. 

35.  Showing  relation  of  parties  to  obliga- 
tion.— In  an  action  by  a  surety  for  contribu- 
tion from  an  alleged  cosurety.  f);irol  evidence 
may  be  admitted  to  show  the  actual  rela- 
tion of  the  parties  to  the  obligation  dis- 
charged by  plaintiff.  Frew  v.  Scoular  (Neb.) 
1918E-511. 

Ann.  Cas.  Dig.'1918C-E.— 7. 


9.  Presumptions. 

As  to  due  care  by  person  killed  by  falling 
down  elevator  shaft,  see  Elevators,  2,  3. 

As  to  findings  in  certiorari  proceeding,  see 
Cebtiorari.  1. 

As  to  negotiability  of  lost  note,  see  Lost  In- 
struments, 4. 

As  to  validity  of  ordinance,  see  Mukicipai. 
Corporations.  14,  15. 

Creating  presumption  of  survivorship  by  will, 
see  Wills,  39,  40,  48. 

Defects  curable  by  conclusive  evidence  clause 
in  statute,  see  Statutes,  17,  18. 

Driving  on  wrong  side  of  street  as  presump- 
tive evidence  of  negligence,  see  Streets 
AND  Highways,  9. 

Effect  of  presumption  of  death  in  action  on 
life  insurance  policy,  see  Life  Insur- 
ance, 17. 

From  destruction  of  duplicate  of  will,  see 
Wills,  12. 

From  failure  to  find  will,  see  Wills,  13. 

In  action  for  death  by  wrongful  act,  as  to 
degree  of  care  used  by  intestate,  see 
Death  by  Wrongful  Act,  10,  11. 

In  favor  of  award  of  compensation  for  user 
of  bridge  owned  by  railroad,  see  Rail- 
roads, 13. 

In  favor  of  common-law  raarriage,  see  JVIab- 
riage,  8. 

In  favoi-  of  validity  of  statutes,  see  Consti- 
tutional Law,  28-30. 

Of  conveyance  as  sale,  see  Moktsages,  4,  6. 

Of  death,  see  Death,  1. 

Of  injury  to  goods  on  line  of  terminal  car- 
rier, see  Carriers  of  Goods,  11. 

On  appeal,  see  Appeal  and  Ebbob,  67-69.' 

Validity  of  subsequent  marriage,  see  Mab- 
RIAGE.   6,   7. 

Vesting  of  title  in  consignee  on  delivery  of 
goods  to  carrier,  see  Cabeiebs  of  Goods, 
14. 

36.  Presumption  based  on  presumption. — 
A  presumption  must  be  based  on  a  fact, 
and  not  upon  inference  or  upon  another  pre- 
sumption. Hays  v.  Hogan  (Mo.)  1918E- 
1127. 

37.  Continuance  of  meretricious  relation- 
ship.— A  meretricious  relationship  between  a 
man  and  woman  is  presumed  to  have  con- 
tinued until  the  adulterous  cohabitation 
changed  from  an  unlawful  to  a  lawful  re- 
lationship. Howard  v.  Kelly  (Miss.)  1918E- 
1230.  • 

38.  Receipt  of  letter. — The  presumption 
that  a  properly  mailed  letter  will,  in  the 
due  course  of  mail,  reach  the  person  to  whom 
it  is  addressed  has  application  only  where 
the  act  of  mailing  is  unquestioned  or  con- 
clusively shown.  Suits  v.  Order  of  United 
Commercial  Travelers    (Minn.)    1918E-508. 

(Annotated) 

10.  Burden  of  Proof. 

39.  How  determined. — The  question  of 
where  the  burden  of  proof  rests  must  be 
determined  by  the  trial  court  upon  the 
pleadings,  and  before  the  introduction  of  any 
evidence.  McClintock  v.  McClure  (Ky.) 
1918E-96. 


98f 


ANN.  CAS.  DIGEST  (1918C-1918E). 


11.  Weight  and  Sufficiency  of  Evidence. 

40.  Weight  of  uncontradicted  testimony. — 
Where  a  witness  on  such  trial  testified  that 
he  saw  the  chauffeur  stop  a  few  feet  short  of 
the  track  before  going  upon  it  and  then  go  on 
to  the  track,  and  that  he  saw  the  accident 
from  his  house,  the  supreme  court  cannot 
say  that  the  testimony  was  unworthy  of  be- 
lief and  should  have  been  disregarded  by  the 
jury,  who  saw  and  heard  the  witness,  on  the 
ground  that  the  witness'  house  was  a  quarter 
of  a  mile  from  the  scene  of  the  accident, 
where  such  distance  can  only  be  conjectured 
from  a  photograph  of  the  surroundings  and 
there  was  no  other  evidence  of  such  dis- 
tance. Southern  R.  Co.  v.  Vaughan  (Va.) 
1918D-842. 

41.  Proof  of  age. — ^Positive  testimony  of 
insm-ed's  having  been  born  in  a  certain 
year,  with  detail  by  witness  of  facts  and 
circumstances,  lending  support  to  his  mem- 
ory, is  substantial  evidence  of  such  fact,  pre- 
venting disturbance  of  refusal  of  new  trial, 
asked  on  the  ground  of  insufficient  evidence 
of  such  fact.  Armstrong  v.  Modem  Wood- 
men of  America  (Wash.)  1918E-263. 

42.  Proof  of  receipt  of  letter. — The  trial 
court  did  not  err,  upon  the  evidence  stated 
in  the  opinion,  in  finding  that  a  letter  offered 
in  evidence  by  defendant  was  not  mailed  to 
or  received  by  the  person  to  whom  it  was 
addressed.  Suits  v.  Order  of  United  Com- 
mercial  Travelers    (Minn.)    1918E-508. 

(Annotated) 
48.  Impeaching  evidence — Effect  as  affir- 
mative proof. — ^Where  a  witness'  testimony 
on  a  material  point  is  contradicted  by  im- 
peaching testimony  of  his  statements  made 
to  witness  at  another  time,  such  statements 
are  available  only  for  impeachment  and  not 
as  affirmative  evidence.  Moseley  v.  Good- 
man  (Tenn.)   1918C-931. 

12.  Legislative  Power  over  Rules  of  Evidence. 

44.  Creating  presumption  of  fact. — While 
the  legislature  may  declare  that  certain 
evidentiary  facts  shall  be  prima  facie  evi- 
dence, such  facts  must  have  some  direct 
and  logical  tendency  to  prove  the  antecedent 
fact,  hence  a  municipal  ordinance  declaring 
that  if  any  person  shall  alone,  or  in  company 
with  others,  loiter  or  parade  back  and  forth 
in  front  of  or  cause  any  other  person  or  per- 
sons to  loiter  or  parade  back  and  forth  in 
front  of,  or  in  the  vicinity  of,  any  store,  fac- 
tory, works,  or  place  of  business,  or  in  front 
of,  or  in  the  vicinity  of  the  home  of  any 
person  connected  with,  employed  in,  or  seek- 
ing employment  in  any  such  store,  etc.,  such 
conduct  shall  be  prima  facie  evidence  of  a 
conspiracy  to  injure  the  trade,  business,  or 
commerce  of  the  proprietor  of  the  store,  etc., 
thus  patrolled,  is  invalid,  because  the  acts 
have  no  tendency  to  prove  a  conspiracy 
to  injure  the  commerce  or  trade  of  any  per-, 
son.     Hall  v.  Johnson    (Ore.)    1918E-49. 


EXAMINATION. 

Of  witnesses,  eee  Witnesses,  8-12. 


EXCEPTIONS  AND  OBJECTIONS. 

Bill  of  exceptions,  see  Appeal  and  Error,  24- 

29. 
Necessity  of  exception  or  objection  to  raise 
question  on  appeal,  see  Appeal  and  Er- 
ror, 89-93. 


EXCHANGE  OF  PROPERTY. 

Commission  for  procuring,  see  Brokers,  3, 
6-12. 

Oral  contract  for  payment  of  commission  for 
exchange  of  personal  property,  for  realty 
as  within  statute  of  frauds,  see  Frauds, 
Statute  of,  3. 

Specific  performance  of  contract  for  ex- 
change of  land,  see  Specific  Perform- 
ance, 1. 


EXECUTIONS. 

See  Attachment;  Garnishment. 
Injunction    against    execution    sale,    see    In- 
junction, 5-9,  16,  17,  19,  20. 

1.  Property  subject — Estate  by  entireties. 
— Under  a  trust  deed  conveying  land  for  the 
benefit  of  the  grantor  and  his  wife  for  their 
lives,  with  a  general  power  of  disposition  in 
the  grantor,  the  estate  of  the  grantor  and  his 
wife  was  an  estate  by  entireties,  and  not 
subject  to  sale  under  execution.  Harris  v. 
Carolina  Distributing  Co.   (N.  C.)   1918C-329. 

2.  Exemptions — Construction  of  statute. — 
Since  exemption  statutes  are  remedial  in 
character,  they  are  given  a  liberal  construc- 
tion.    Childers   v.   Brown    (Ore.)    1918D-170. 

3.  Exemption  of  team. — Under  L.  0,  L. 
§  227,  as  amended  by  Laws  1915,  p.  27,  ex- 
empting from  execution  a  team,  vehicle, 
harness,  etc.,  necessary  to  enable  anyone  to 
carry  on  the  occupation  by  which  he  habitu- 
ally earns  his  living,  the  debtor  may  select 
and  reserve  a  team,  vehicle,  and  harness 
without  being  obliged  to  show  that  he  has 
no  other  like  property,  or  to  point  out  other 
property  to  the  sheriff,  even  though  he  owns 
additional  property  of  the  same  kind,  and 
the  debtor,  if  owning  more  than  two  horses, 
may  select  any  two.  Childers  v.  Brown 
(Ore.)    1918D-170. 

4.  Under  such  statute,  it  is  essential  that 
the  property  should  have  been  used  exclu- 
sively to  carry  on  the  occupation  by  Avhich 
one  habitually  earns  his  living,  because  an 
occasional  iise  for  other  purposes  will  not 
defeat  his  right  to  exemption;  and  such  right 
is  not  lost  if  the  owner  is  not  actually  using 
the  property  in  his  occupation  at  the  very 
time  of  the  levy,  or  if  temporarily,  he  is  not 
engaged  in  his  occupation,  and  is  preserved  if 
he  honestly  intends  to  use  the  property  with- 
in a  reasonable  time  to  carrj'  on  his  occu- 
pation. Childers  v.  Brown  (Ore.)  191 8D- 
170.  (Annotated) 

5.  Under  L.  0.  L.  §  227,  as  amended  by 
Laws  1915,  p.  27,  making  the  team,  vehicle, 

■  harness,  etc..  necessary  to  enable  any  person 
to  carry  on  the  trade,  occupation,  or  profes- 


EXECUTORS  AND  ADMINISTRATORS. 


d9 


sion  by  which  he  habitually  earns  his  living 
exempt  from  execution,  the  term  "necessary" 
signifies  "reasonably  necessary"  or  '"con- 
venient" or  "suitable,"'  and  does  not  mean 
"indispensable"'  or  "absolutely  necessary;" 
and,  standing  alone,  the  word  "occupation"' 
means  the  principal  business  of  one's  life, 
habitual  or  stated  employment,  vocation, 
calling,  trade,  the  business  in  which  one 
principally  engages  to  secure  a  living,  the 
employment  by  which  he  generally  gets  his 
living,  and  includes  any  employment  in  which 
a  .person  is  engaged  to  procure  a  living. 
Childers  v.  Brown   (Ore.)   1918r)-170. 

(Annotated) 

6.  In  replevin  for  a  team,  wagon,  and  har- 
ness attached  by  defendant  sheriff,  the  tak- 
ing of  which  was  justified  by  his  answer,  a 
reply  claiming  an  exemption  and  right  to  a 
return  of  the  property  under  the  statute 
(L.  0.  L.  §  227,  as  amended  by  Laws  1915, 
p.  27),  exempting  from  execution  a  team, 
vehicle,  harness,  etc.,  necessary  to  enable  one 
to  carry  on  the  occupation  by  which  he  hab- 
itually earns  his  living,  showing  that  the 
property  was  being  used  by  plaintiff  for  the 
purpose  of  earning  a  living  for  the  support 
of  his  family,  and  that  it  was  the  only 
property  of  the  kind  which  he  could  use, 
and  that  it  had  been  habitually  used  for  that 
purpose,  was  sufficient  after  verdict.  Chil- 
ders  V.   Brown    (Ore.)    1918D-170. 

7.  Waiver  of  exemption. — The  right  of  ex- 
emption from  execution  is  a  privilege  which 
may  be  waived  by  the  consent  of  the  debtor, 
or  bv  his  failure  to  assert  his  rights.  Chil- 
ders'v.   Brown    (Ore.)    1918r)-170. 

8.  Under  L.  O.  L.  §  227,  as  amended  b^ 
Laws  1915,  p.  27,  exempting  from  execution 
a  team,  vehicle,  harness,  etc.,  necessary  to 
enable  one  to  carry  on  his  occupation,  if 
selected  and  reserved  by  the  judgment  debt- 
or at  the  time  of  the  levy  or  as  soon  there- 
after before  sale  as  it  shall  be  known  to  him, 
a  failure  to  select  exempted  property  at  the 
exact  time  of  the  levy,  even  though  the  debt- 
or is  present,  will  not  alone  operate  as  a 
waiver  of  his  right,  as  the  word  "at,"  when 
used  in  reference  to  time,  does  not  always 
mean  the  exact  moment  or  day,  but  may 
express  nearness  and  proximity,  and  conse- 
quently may  denote  a  reasonable  time,  and 
as  the  words  "as  soon  as"  likewise  have  a  re- 
stricted and  an  luirestricted  signification;  so 
that  the  debtor,  if  he  acts  before  sale,  may 
assert  his  right  of  exemption  within  a  rea- 
sonable time  after  the  levy  becomes  known 
to  him,  whether  he  was  present  or  absent 
at  the  time  of  the  seizure.  Childers  v. 
Brown   (Ore.)   1918D-170. 

9.  Burden  of  showing  exemption. — A 
sheriff's  seizure  on  attachment  cannot  be 
avoided,  unless  the  debtor  alleges  and  proves 
a  situation  bringing  the  property  within  the 
exemption  statute,  and  avers  and  establishes 
every  fact  essential  to  the  exemption.  Chil- 
ders V.  Brown   (Ore.)   1918D-170. 


EXECXJTQRS      AND      ADMINISTRA- 
TORS. 

1.  Appointment  and  Removal,  99. 


2.  Title  to  Estate,  100. 

3.  Assets  of  Estate.   100. 

4.  Rights  and  Liabilities,  100. 

5.  Sale  of  Decedent's  Realty,  100. 

6.  Accounting,  JOG. 

7.  Distribution,  100. 

See  Descent  and  Distribution;  Wills. 

Executor  as  trustee  within  rule  that  bar  of 
statute  against  trustee  bars  right  of 
cestui  que  trust,  see  Limitation  of  Ac- 
tions, 3. 

1.   Appointment   and   RemovaL 

1.  Right  of  executor  to  appointment. — Un- 
der Rev.  St.  1909,  §§  14,  17,  19,  50,  touch- 
ing the  granting  of  letters  of  administration 
to  executors,  providing  who  may  not  act  as 
executors,  and  providing  for  the  revocation 
of  letters  of  administration  for  certain 
causes,  the  right  to  letters  testamentary  of 
a  party  named  as  executor  in  a  will  is 
absolute,  unless  other  facts  appear  which  pre- 
clude him  from  asserting  his  original  right, 
and  mandamus  is  a  proper  remedy  to  com- 
pel the  probate  court  to  grant  such  letters. 
State  V.  Holtcamp  (Mo.)   1918D-454. 

2.  Renunciation  of  right. — One  named  as 
executor  in  a  will,  though  having  the  abso- 
lute right  to  letters  testamentary  upon  pro- 
bate, if  not  disqualified  by  the  statutes  may 
renounce  his  rights  by  express  renunciation 
or  by  acts  and  conduct  in  pais.  State  v. 
Holtcamp   (Mo.)   1918D-454. . 

(Annotated) 

3.  Where  the  executor  named  in  the  will  of 
an  Ohio  decedent,  after  qualifying  as  such 
in  Ohio,  resigned  generally,  not  stating  that 
he  was  resigning  only  in  Ohio,  and  also  re- 
signed as  director  in  the  corporation  in  which 
the  Missouri  assets  of  the  estate  were  prin- 
cipally invested,  avowedly  severing  all  his 
relations  with  the  Missouri  estate,  writing  a 
letter  to  testator's  widow  clearly  indicating 
his  intention  to  have  nothing  to  do  with 
the  estate,  and,  though  a  resident  in  the  city 
in  Missouri  where  the  property  was  lo- 
cated, taking  no  interest  therein  for  three 
months,  nor  making  any  effort  in  Missouri  to 
file  the  will  or  qualify  thereunder,  which  was 
finally  presented  by  another,  the  probate 
court  is  justified  in  finding  that  the  executor 
had  renounced  his  right  to  act  as  such  in 
Missouri.  State  v.  Holtcamp  (Mo.)  1918I>- 
454.  (Annotated) 

4.  The  exercise  of  judicial  discretion,  such 
as  the  determination  by  the  probate  court  of 
whether  the  executor  named  in  a  will  has 
renounced  in  pais,  cannot  be  controlled  by 
mandamus.  State  v.  Holtcamp  (Mo.)  1918D- 
454.  '  (Annotated) 

5.  Effect  as  to  ancillary  jurisdiction. — An 
executor's  renouncement  or  resignation  in  the 
domiciliary  jurisdiction  of  testator  termi- 
nates- his  right  to  act  in  other  jurisdictions 
Tinder  ancillary  letters.  State  v.  Holtcamp 
{Mo.)    1918D-454.  (Annotated) 

6.  An  executor  named  in  the  will  of  an 
Ohio  decedent  who  resigned  generally,  after 
qualifying  in  Ohio,  is  not  entitled  to  appoint- 
ment   as    executor    in    Missouri    after    the 


100 


ANN.  CAS.  DIGEST   (iyi8C-1918E), 


probate  court,  acting  on  his  renunciation,  has 
appointed  an  administrator  in  his  stead. 
State   V.   Iloltcamp    (Mo.)    1918D-454. 

(Annotated) 

7.  Resignation  in  ancillary  jurisdiction. — 
The  right  of  reiioiuuement  of  a  person 
named  in  a  will  as  executor  is  available  only 
in  the  tribunal  of  the  testator's  domicil,  and, 
after  an  executor  has  qualified  in  such  tri- 
bunal, his  resignation  in  an  ancillary  juris- 
diction is  void.  State  v.  Holteamp  (Mo.) 
1918D-454.  (Annotated) 

8.  Appointment  of  administration  after  re- 
nunciation of  executor. — The  probate  court, 
in  appointing  an  administrator,  after  re- 
nunciation by  the  executor  named  as  such 
in  the  will,  must  determine  whether  there 
has  been  a  renunciation,  in  which  matter  it 
exercises  a  discretion  and  performs  a  judicial 
function.  State  v.  Holteamp  (Mo.)  1918D- 
454.  (Annotated) 

2.  Title  to  Estate. 

9.  Under  the  statutory  provisions  and 
procedure  relative  t6  the  estates  of  decedents, 
the  title  to  real  estate  vests  in  the  heirs  and 
devisees  at  the  moment  of  the  death  of  the 
testator  or  intestate,  subject  only  to  the 
right  of  possession  of  the  executor  or  admin- 
istrator under  Rev.  Laws,  §  5950,  for  the 
payment  of  the  debts  and  expenses  of  ad- 
ministration, with  the  right  in  the  adminis- 
trator to  possession  until  the  estate  is  set- 
tled or  delivered  over  to  the  parties  en- 
titled by  the  'order  of  the  probate  court. 
Wren  v.  Dixon.  (Xev.)   1918D-1064. 

10.  Property  outside  jurisdiction. — An  ex- 
ecutor duly  qualified  in  testator's  domiciliary 
jurisdiction  succeeds  to  title  of  all  of  tes- 
tator's estate,  whenever  situated,  and  con- 
tinues to  hold  such  title  until  an  ancillary 
executor  is  appointed  in  a  foreign  jurisdic- 
tion, when  the  title  of  the  estate  in  the  an- 
cillary jurisdiction  vests  in  the  latter.  State 
V.  Holteamp    (Mo.)    1918D-4.54. 

11.  Action  by  heirs  to  recover  realty. — 
Where  an  administrator  or  executor  has 
been  appointed,  and  the  estate  is  in  the 
course  of  probate,  it  is  the  right  of  the  heirs 
to  maintain  an  action  as  against  third  per- 
sons for  the  possession  of  the  realty.  Wren 
V.    Dixon    (Nev.)    1918D-1064. 

3.  Assets  of  Estate. 

12.  Money  in  hands  of  heirs. — The  ques- 
tion of  the  obligation  of  one  or  more  of 
the  heirs  of  an  estate  to  collate  money 
paid  to  them,  by  consent  of  their  coheirs, 
prior  to  the  appointment  of  the  executor,  is 
one  which  the  executor  may  leave  to  the  heirs 
for  settlement.  Pons's  Succession  (La.) 
1918D-939. 

4.  Rights  and  Liabilities. 

13.  False  representation  by  agent. — An 
administrator  selling  his  decedent's  goods 
through  an  agent  is  liable  for  the  acta  of  the 
agent  done  within  the  scope  of  his  authority, 
including  false  representations   made   to  the 


buyers  as  to  the  condition  and  kind  of  the 
goods.     Harlow   v.  Perry   (Me.)    1918C-37. 

5.  Sale  of  Decedent's  Realty. 

14.  Interest  of  widow.— Where  a  testator 
gives  to  his  wife  a  life  estate  in  all  his 
property,  a  power  of  sale  given  to  execu- 
tors cannot  be  construed  to  deprive  her  of 
her  life  estate,  or  dispose  of  property  with- 
out her  joining  in  the  deed.  Cross  v.  Bus- 
kirk-Rutledge  Lumber  Co.  (Tenn.)  1918D- 
983. 

6.  Accounting. 

15.  Persons  entitled  to  object.— Where  the 
(accounts  of  executors,  who  paid  certain 
taxes,  were  duly  settled,  testamentary  trus- 
tees, who  simply  received  the  residue  of 
the  estate,  have  no  right  to  request  instruc- 
tions on  the  propriety  of  such  payments. 
Parkhurst  v.  Ginn   (Mass.)   1918E-982. 

7.  Distribution. 

16.  Finality  of  decree.— After  final  distri- 
bution it  must  be  presumed  that  the  decree 
therefor  was  duly  rendered,  and  such  de- 
cree becomes  final  against  one  suing  the 
executrix  for  accounting,  claiming  under  an 
alleged  unprobated  codicil  devising  plain- 
tiff money,  unless  facts  alleged  disclose  fraud 
of  the  executrix  in  procuring  the  decree. 
Davis  V.  Seavey   (Wash.)    1918D-314. 

17.  Ground  for  vacation. — That  the  execu- 
trix failed  to  present  true  facts  as  to  who 
was  entitled  to  property  on  final  distribu- 
tion hearing  is  no  ground  for  setting  aside 
a  final  decree  rendered  on  due  notice,  being 
in  effect  a  collateral  attack.  Davis  v.  Seavev 
(Wash.)    1918D-314. 

18.  To  warrant  setting  aside  decree  for 
final  distribution,  rendered  on  due  notice, 
fraud  alleged  on  part  of  executrix  must 
relate  to  preventing  claimant  from  appear- 
ing and  setting  up  her  claim.  Davis  v.  Sea- 
vey  (Wash.)    1918D-314. 

19.  Where  final  decree  of  distribution  un- 
der will  is  made,  and  beneficiary  under  an 
alleged  unprobated  codicil  makes  no  claim 
or  objection  for  over  a  year,  such  beneficiary 
has  no  standing  under  Rem.  Code  1915,  § 
466,  requiring  petitions  to  vacate  judgments 
to  be  served  on  the  adverse  party  within 
one  year.  Davis  v.  Seavey  (Wash.)  1918D- 
314.  (Annotated) 

20.  Under  Rem.  Code  1915,  §  1307,  pro- 
viding for  will  contests  within  one  year  after 
probate  or  rejection,  where  final  decree  of 
distribution  under  will  was  made,  and  the 
beneficiary  under  an  alleged  unprobated  codi- 
cil made  no  claim  or  objection  for  over  a 
year,  her  suit  for  accounting  was  not  a  will 
contest,  and  she  can  have  no  relief  al- 
though the  existence  of  the  codicil  was  con- 
cealed by  the  executrix.  Davis  v.  Seavev 
(Wash.)    1918D-314.  (Annotated) 


EXECUTORY  DEVISES. 

See  Remaindebs",  1,  2. 


EXECUTORY  LIMITATIONS— FACTORS. 


101 


EXECUTORY  LIMITATIONS. 

Dower  in  lands  subject  to  executory  limita- 
tion, see  DowEB,  1-3,  5. 


EXEMPLARY  DAMAGES. 

See  Damages,  3. 

EXEMPTIONS. 

From  execution,  see  Executions,  2-9. 
From  inheritance  taxes,  see  Taxation,  55-58. 
From   taxation   for   special   assessments,   see 

Taxation,  46. 
From  taxation  generally,  see  Taxation,  21- 

33. 

EXHIBITS. 

Incorpoi-ation  of  exhibits  in  record  on  ap- 
peal, see  Appeal  and  Erboe,  19-21. 

Necessity  for  attaching  will  as  exhibit  to 
deposition  referring  thereto,  see  Deposi- 
tions, 1. 

EXPERIMENTAL   EVIDENCE. 

See  Evidence,  10,  11. 

EXPERTS. 

Expert  evidence,  see  Evidence,  12-14. 

EXPLOSIONS  AND   EXPLOSIVES. 

Judicial  notice  of  fact  of  unexplained  explo- 
sions, see  Evidence,  1. 

1.  Municipal     regulation     of     storage. — A 

municipality  is  not  estopped  from  passing 
an  ordinance  prohibiting  keeping  of  gasolene, 
etc.,  in  quantities,  within  300  feet  of  a  dwell- 
ing, etc.,  by  having  once  required  the  tanks  of 
an  oil  company  in  the  municipality  to  be 
moved  to  an  approved  site,  although  such 
prior  removal  was  attended  with  expense  to 
the  oil  company.  Pierce  Oil  Corp.  v.  Hope 
(Ark.)    1918E-143.  (Annotated) 

2.  Such  an  ordinance  is  authorized  by  Kir- 
by's  Dig.  §§  5438,  5439,  authorizing  munic- 
ipalities to  regulate  the  keeping  of  combus- 
tibles, etc.  Pierce  Oil  Corp.  v.  Hope  (Ark.) 
1918-143.  (Annotated) 

3.  A  municipality  is  not  deprived  of  its 
power  to  ordain  that  gasolene,  etc..  shall  be 
stored  in  a  certain  manner  by  the  fact  that 
oil  companies  affected  have  provided  facili- 
ties which,  if  properly  used,  will  render  their 
tanks  harmless;  a  municipality  having  the 
right  to  use  its  judgment  as  to  the  amount 
of  risk  involved.  Pierce  Oil  Corp.  v.  Hope 
(Ark.)    1918E-143.  (Annotated) 

4.  Leaving  explosives  accessible  to  infants. 
— It  is  actionable  negligence  to  leave  bombs 
or  other  explosives  in  a  position  where  they 


are  liable  to  become  exploded  by  children  to 
their  injury.  Sroka  v.  Halliday  (E.  I.) 
1918D-961. 

5.  Owner  of  business  mining  marl  one- 
fourth  of  a  mile  from  a  station  and  town, 
who  maintained  an  unlocked  shed  in  which 
dynamite  caps  were  stored,  around  which 
children  were  seen  playing,  and  to  which  a 
path  led  from  the  road,,  was  liable  when  a 
seven  year  old  boy  took  dynamite  caps 
from  the  shed  and  was  injured  by  the  ex- 
plosion of  one  of  them.  Krachanake  v. 
Acme  Mfg.  Co.   (N.  C.)   1918E-340. 

EXPRESS  COMPANIES. 

Damages  recoverable  for  delay  in  transporta- 
tion of  moving  piciture  films,  see  Car- 
BiERS  OF  Goods,  21. 

Liability  for  deviation  from  agreed  method 
of  transportaion  of  horses,  see  Caeriebs 
OF  Live  Stock,  1. 


EXTENSION  OF  TIME. 

As  consideration  for  contract  of  suretyship, 

see  Suretyship,  2,  3. 
As    discharging    accommodation    maker,    see 

Bills  and  Notes,  1,  2. 


EXTRADITION. 

1.  Trial  for  other  offense. — Where  a  per- 
son is  extradited  to  Canada  from  the  United 
States  on  a  charge  of  fraud  by  instigating 
the  publication  of  a  false  statement  in  a 
certain  newspaper  and  is  convicted  in  Cana- 
da of  the  offense  of  fraud  in  concurring  in 
the  publication  of  the  same  false  statement 
in  another  newspaper,  the  conviction  should 
be  quashed  as  being  for  an  offense  other 
than  the  one  on  which  the  warrant  for  ex- 
tradition issued.  Buck  v.  The  King  (Can.) 
1918D-1023.  (Annotated) 

2.  Person  not  in  demanding  state  at  time 
of  offense. — Although  the  federal  law  does 
not  provide  for  the  surrender  by  a  state 
as  a  fugitive  from  justice  of  one  who  has 
violated  the  crimiual  laws  of  another  state 
without  having  been  present  therein,  and 
although  in  the  absence  of  state  legislation 
no  authority  exists  for  such  surrender, 
nevertheless,  where,  in  the  absence  of  any 
local  statute,  a  person  is  surrendered  by  one 
state  to  another  as  a  fugitive  from  justice, 
the  fact  that  the  accused  had  not  been  in 
the  demanding  state  at  the  time  of  the  al- 
leged offense,  or  since  then,  does  not  deprive 
its  courts  of  jurisdiction  to  try  him  there- 
for, nor  does  it  show  such  an  abuse  of 
process  as  to  warrant  the  dismissal  of  the 
case  against  him.  State  v.  Wellman  (Kan.) 
1918D-1006.  (Annotated) 


FACTORS. 


See  Brokers. 


102 


ANN.  CAS.  DIGEST  (1918C-1918E). 


1.  Right  to  deny  title  of  consignor. — A 
factor  or  commission  merchant  is  both  a 
bailee  and  a  sales  agent,  and  is  estopped 
from  attacking  the  title  of  the  consignor  to 
the  proceeds  of  propertj'^  consigned  to  and 
sold  by  him  until  he  has  delivered  such  pro- 
ceeds to  the  consignor.  Blackorby  v.  Friend 
(Minn.)    1918E-1199.  (Annotated,' 

2.  There  are  vgirious  exceptions  to  the 
above  rule,  as  where  the  bailee  has  yielded 
to  a  paramount  title  asserted  by  a  third 
party  without  his  connivance,  or  where  a 
fraud  is  being  perpetrated  upon  him.  Black- 
orby V.  Friend    (Minn.)    1918E-1199. 

(Annotated) 

3.  Defendant,  a  commission  merchant,  sold 
a  carload  of  stock  consigned  to  it  by  plain- 
tiflf  and  received  the  proceeds  thereof  which 
it  refuses  to  deliver  to  plaintiff.  The  case 
is  not  within  any  of  the  exceptions  to  the 
above  rule  and  defendant  is  estopped  from 
denying  plaintiff's  title  to  such  proceeds. 
Blackorby  v.  Friend  (Minn.)   1918E-1196. 

(Annotated) 


himself  and  all  the  defendants,  except  one, 
is  admissible.  People  v.  Brady  (111.)  11)18C- 
540. 

4.  Evidence,  in  a  trial  on  an  indictment 
for  obtaining  money  and  property  from  a  cer- 
tain named  person  by  means  of  the  confidence 
game,  is  held  to  sustain  a  conviction.  People 
v.   Brady    (111.)    1918C-540. 


FARES. 

See  Cabbiebs  of  Passenoebs. 


FATHER. 

See  Pabent  Ayo  Child. 


FEDERAL    BOILER    INSPECTION 
ACT. 

See  Masteb  and  Sebvant,  4,  5. 


FACTS. 

Review  of  facts  on  appeal,  see  Appeat.  and 
Ebbob,  43-57. 


FAITH  AND   CREDIT. 

Effect  of  foreign  judgment  against  prin- 
cipal defendant,  see  Garnishment,  3. 

Of  foreign  judgment,  see  Conflict  of  Laws, 
5. 


FEDERAL    EMPLOYERS'    LIABILITY 
ACT. 

Lien    of   attorney    in   action   brought   under 
act,  see  Attobneys,  17. 


FEDERAL  HOURS  OF  SERVICE  ACT. 

Unavoidable    accident  causing  delay    as   ex- 
cusing violation,  see  Labob  Laws,  1. 


FALSE    PRETENSES. 

1.  Confidence  game. — Under  Cr.  Code,  §  98, 
declaring  that  anyone  obtaining  from  another 
any  money  or  property  by  use  of  any  false 
or  bogus  cheek,  instrument,  or  devise,  com- 
monly called  the  confidence  game,  shall  be 
imprisoned,  and  §  99,  providing  an  indict- 
ment charging  that  accused  did  unlawfully 
and  feloniously  obtain  from  a  certain  per- 
son his  money  or  property  by  means  and  by 
use  of  the  confidence  game  shall  be  suffi- 
cient, an  indictment  need  not  set  out  the 
acts  constituting  the  offense.  People  v. 
Brady  (111.)  1918C-540. 

2.  Under  such  provisions,  together  with 
Criminal  Code,  §  408,  providing  that  every 
indictment  shall  be  sufficient  which  states 
the  offense  in  the  terms  and  language  of  the 
statute  creating  the  offense  or  so  plainly  that 
the  natiu"e  of  it  may  be  understood  by  the 
jury,  an  indictment,  charging  the  obtaining 
of  property  by  means  of  the  confidence  game, 
without  describing  the  property  alleged  to 
have  been  obtained,  was  sufficient,  as  the 
crime  does,  not  consist  in  the  obtaining  of 
any  particular  amount  of  money  or  property, 
but  in  obtaining  money  or  property  without 
reference  to  its  kind.  People  v.  Brady  (111.) 
1918C-540. 

3.  In  such  trial  the  testimony  of  a  witness 
as  to  a  precisely  similar  transaction  between 


FEDERAL   QUESTION. 

Eaising  of  federal  question  by  assertion  in 
opinion  of  appellate  court,  see  Appeal 
AND  Ebbob,  8. 


FEDERAL  RESERVE  BANK  ACT. 

Validity  and  construction  of  act,  see  Banks 
AND  Banking,  1-3. 


FEES. 

Constitutionality  of  statute  requiring  pay- 
ment of  fees  by  candidates,  see  Elec- 
tions, 3. 


FENCES. 

'Submission   of  proposition   for   adoption   of 
fence  law,  see  Elections,  15,  16. 

1.  Validity  of  county  fence  law. — Pub.  Loc. 
Laws,  c.  505,  providing  the  method  and 
amount  of  taxation  for  the  construction  of 
county  fences,  is  invalid  as  in  violation  of 
Const,  art.  7,  §  9,  providing  that  all  taxes 
shall  be  uniform  and  ad  valorem  on  all  prop- 
erty except  property  exempted  by  tlie  consti- 
tution, in  that  it  attempts  to  e.\empt  prop- 


FERRIES— FIRE  INSURANCE. 


103 


«rty  of  natural  persons.     Keith  v.  Lockhart 
(N.  0.)    1918D-916. 


FERRIES. 

1.  Care  required. — Ferrymen,  by  reason  of 
the  nature  of  the  franchise  they  exercise, 
and  the  character  of  the  services  they  ren- 
der to  the  public,  are  held  to  extreme  dili- 
gence and  care,  and  to  a  stringent  liabil- 
ity for  any  neglect  or  omission  of  duty, 
which  is  the  rule  of  reasonable  care  for 
ferrymen,  since  the  term  is  relative.  Meisle 
V.  New  York  Cent,  etc.  R.  Co.  (N.  Y.)  1918E- 
1081.  (Annotated) 

2.  Strict  diligence  and  a  due  regard  for 
the  value  of  human  life,  required  of  a  ferry- 
man by  the  rule  of  reasonable  care,  do  not 
make  him  an  insurer  of  the  safety  of  his 
passengers.  Meisle  v.  New  York  Cent.  etc. 
R.   Co.    (N.   Y.)    1918E-1081. 

(Annotated) 

3.  It  is  not  necessary  that  a  railroad  op- 
erating a  steam  ferryboat  should  have  notice 
that  failure  to  put  up  the  chains  on  the 
ferryboat  at  the  end  of  the  boat  will  result 
in  an  accident,  if  the  possibility  of  the  acci- 
dent is  clear  to  the  ordinarily  prudent  eve. 
Meisle  v.  New  York  Cent.  etc.  R.  Co.  (N.  Y.) 
1918E-1081.  (Annotated) 

4.  Supervision  of  automobiles. — ^A  ferry- 
man, as  part  of  his  general  duty  to  exer- 
cise reasonable  care,  is  under  duty  to  recog- 
nize that  automobiles,  while  not  inherently 
dangerous,  may,  from  conditions  of  place 
and  circumstances,  became  dangerous  instru- 
mentalities. Meisle  v.  New  York  Cent.  etc. 
R.  Co.    (N.  Y.)   1918E-1081.  (Annotated) 

5.  It  is  the  duty  of  a  ferryman  transport- 
ing automobiles  to  provide  a  practical  bar- 
rier against  the  cars  running  forward  and 
injuring  a  passenger,  and  to  exercise  reason- 
able supervision  over  the  automobiles  while 
on  the  ferryboat.  Meisle  v.  New  York  Cent, 
etc.  R.  Co.  (N.  Y.)  1918E-1081. 

(Annotated) 

6.  Question  for  jury. — In  an  administra- 
trix's action  against  a  railroad  operating  a 
steam  ferryboat  for  death  of  her  intestate 
by  drowning  when  an  automobile  on  the 
boat  im  forward  and  knocked  decedent  into 
the  river,  defendant  having  interposed  no 
obstacle  to  the  progress  of  the  car  once  it 
was  started,  the  question  of  defendant's 
negligence  is  held  to  be  for  the  jury.  Meisle 
'  .  New  York  Cent.  etc.  R.  Co.  (N.  Y.)  1918E- 
1081.  (Annotated) 


FII.MS. 

.Damages    for    delay    in    transportation,    see 
Cabeiers  of  Goods,  21. 


FINAL  JUDGMENT. 

Finality  of  order  of  intermediate   appellate 
court,  see  Appeal  axd  Error,  9. 


FINDINGS. 

See   Verdict. 

Review  of  findings  of  court,  see  Appe:ai<  and 
Error,  49,  50. 

Of  intermediate  appellate  court,  see  Appeal 
AXD   Error.   53-57. 

Necessity  as  to  issue  involving  rights  ex- 
cluded by  laches,  see  Trlal,  11. 


FIRE  INSURANCE. 

1.  Insurable  Interest,  103. 

2.  Construction  of  Policy: 

a.  In  General,    103. 

b.  Particular  Provisions: 

(1)  Sole  and  Unconditional  Owner- 

ship, 104. 

(2)  Provision    against    Assignment, 
■     104. 

(3)  Iron-safe  Clause,   104. 

(4)  Provision  against   Keeping  Cer- 

tain Articles,  104. 

3.  Cancellation  of  Policy,  105. 

4.  Actions,  105. 

See  lNStJRA>'CE. 

Validity  of  statute  creating  state  insurance 
board  and  requiring  fire  insurance  com- 
panies to  file  schedule  of  rates,  see  Ix- 

SUBAXCE,  10. 

1.  Insurable  Interest. 

1.  Any  person  has  an  insurable  interest  in 
property  if  he  receives  a  benefit,  or  by  the 
destruction  of  which  he  will  suffer  a  loss, 
whether  he  has  or  has  not  any  title  in,  or 
lien  upon,  or  possession  of,  the  property 
itself.  Plum  Trees  Lime  Co.  v.  Keeler 
(Conn.)    1918E-831. 

2.  Interest  of  lessee. — Where  a  quarry  ten- 
ant has  erected  buildings  at  a  cost  of  $2,- 
500  and  has  a  lease  which  will  run  for  eight 
years  requiring  it  to  keep  the  buildings  and 
machinery  in  good  repair,  it  has  an  insur- 
able interest  in  the  buildings.  Plum  Trees 
Lime  Co.  v.  Keeler  (Conn.)   1918E-831. 

(Annotated) 

3.  Estoppel  of  lessor  to  deny  insurable  in- 
terest of  lessee. — ^Where  the  lease  will  ex- 
pire in  eight  years  and  the  tenant  has  built 
new  buildings  to  make  the  premises  tenant- 
able  and  has  taken  out  insurance  which  the 
insurer  required  to  be  in  the  landlord's  name, 
and  on  loss  the  landlord  collects  the  insur- 
ance after  having  refused  to  insure  his  own 
buildings,  the  value  of  plaintiff's  buildings 
being  greater  than  the  amount  of  insurance, 
it  is  too  late  for  the  landlord  to  claim  that 
the  tenant  had  no  legal  or  equitable  right  to 
recover  the  insurance  monev.  Plum  Trees 
Lime  Co.  v.  Keeler  (Conn.)   1918E-831. 

2.  Construction  of  Policy. 

a.  In   General. 

4.  Ignorance  of  insured  of  terms  of  policy. 
— The  neglect  of  the  insured  to  become  ac- 
quainted with  the  provisions  of  his  fire  insur- 


104 


ANK  CAS.  DIGEST  (1918C-1918E). 


ance  policy  which  he  seeks  to  enforce  cannot 
relieve  him  of  the  binding  effect  of  its  cove- 
nants, in  the  absence  of  any  evidence  im- 
peaching its  validity.  Miller  v.  Home  Ins. 
Co.    (Md.)   1918P:-;}84. 

6.  Misrepresentations. — A  fraiidulent  mis- 
representation avoiding  a  lire  insurance 
policy  must  have  been  knowingly  false,  have 
misled  the  insurer,  and  increased  the  risk. 
Waller  v.  New  York  Ins.  Co.  (Ore.)  1918C- 
139. 

6.  Defendant  fire  insurance  company's  al- 
legations that  plaintiff  secured  insurance  on 
a  house  which  defendant  had  i^reviously  re- 
fused to  insure  by  misstating  its  name  and 
location,  is  held  to  be  insufficient  where  facts 
showing  the  materialitj'  of  such  representa- 
tions or  the  resulting  damage  to  defendant 
were  not  stated.  Waller  v.  New  York  Ins. 
Co.    (Ore.)    1918C-139. 

b.    Particular    Provisions. 

(1)    Sole  and  Unconditional  Ownership. 

7.  A  party  in  possession  under  a  partly 
performed  contract  for  the  purchase  of  realty 
is  the  sole  and  unconditional  owner  in  fee 
simple  within  the  Oregon  standard  fire  in- 
surance policy.  Waller  v.  Ncav  York  Ins. 
Co.   (Ore.)   1918C-139.  (Annotated) 

8.  A  fire  insurance  policy  upon  a  building, 
containing  a  stipulation  that  the  policy  "shall 
be  void  ...  if  the  interest  of  the  in- 
sured be  other  than  unconditional  and  sole 
ownership,"  is  not  invalidated  because  of  an 
outstanding  naked  legal  title  in  another 
where  the  insured  has  the  equitable  title, 
the  entire  beneficial  ownership  of  the  prop- 
erty, and  is  in  undisputed  possession  of  the 
same.  Hankins  v.  Williamsburg  City  F.  Ins. 
Co.    (Kan.)    1918C-135.  (Annotated) 

(2)  Provision  against  Assignment. 

9.  A  policy  of  fire  insurance  provided  that 
it  should  become  void  if  the  property  insured 
was  "assigned"  without  the  permission  of 
the  insurer,  and  further  that  any  change 
material  to  the  risk  should  avoid  the  policy 
unless  the  company  was  promptly  notified 
thereof.  The  insured  gave  a  bill  of  sale  of 
the  insured  property  as  security  for  an  in- 
debtedness, retaining  possession.     It  is  held: 

(1)  The  insured  property  was  not  "as- 
signed" in  violation  of  the  provision  of  the 
policy  by  giving  the  bill  of  sale,  which  was  in 
legal  effect  a  chattel  mortgage. 

(2)  Whether  there  was  a  change  material 
to  the  risk  was  a  question  for  the  jury,  and 
its  finding  thereon  is  sustained  by  the  evi- 
dence. King  V.  Hartford  F.  Ins.  Co.  (Minn.) 
1918D-861.  (Annotated) 

(3)  Iron -safe  Clause. 

10.  Where  in  an  inventory  taken  under  the 
terms  of  a  policy  of  insurance  providing  that, 
"The  assured  will  take  an  itemized  inventory 


of  stock  hereby  insured,  .  .  .  "  it  appears 
that  approximately  one-ninth  of  a  stock  of 
merchandise  covered  by  the  policy  was  not 
invoiced  in  a  proper  or  approved  manner,  in 
that  some  of  the  articles  were  set  down  in 
lots  or  groups,  and  not  by  items,  but  that  the 
remainder  of  such  stock  was  described  there- 
in item  by  item,  with  the  value  set  opposite, 
held,  that  such  deficiency  did  not  pervade  the 
whole  inventory  or  constitute  its  controlling 
feature.  Held,  further,  that  inasmuch  as  the 
greater  proportion  of  the  stock,  properly  in- 
ventoried, amounted  in  value  to  approximate- 
ly .$42,000,  and  recovery  was  had  for  but 
$23,000,  the  inventory  in  the  instant  case 
substantially  meets  the  requirements  of  the 
policy.  Hanover  F.  Ins.  Co.  v.  Eisman 
(Okla.)   1918D-288. 

11.  The  provision  of  a  policy  of  insurance 
that  "the  assured  will  keep  a  set  of  books, 
which  shall  clearly  and  plainly  present  a 
complete  record   of  the   business  transacted, 

. "  is  substantially  complied  with  by 
the  assured  keeping  a  set  of  books  clearly 
showing  such  matters  to  men  of  ordinary 
intelligence.  Evidence  examined,  and  held 
sufficient  to  show  a  substantial  compliance 
with  such  provisions.  Hanover  F.Ins.  Co.  v. 
Eisman    (Okla.)    1918D-288. 

12.  Under  covenants  in  a  policy  of  fire  in- 
surance on  a  stock  of  merchandise  that  in- 
sured would  take  a  complete  inventory  of 
stock  on  hand  at  least  once  a  year,  and  un- 
less such  an  inventory  had  been  taken  with- 
in a  year,  would  take  an  inventory  within 
thirty  days  of  its  issuance,  insured,  who  on 
his  purchase  of  the  stock  two  weeks  before 
the  date  of  the  policy  makes  a  complete  and 
itemized  list  of  the  various  goods  in  the 
stock  indicating  the  amount  and  value  in 
detail  as  a  basis  for  his  purchase,  makes 
an  inventory  within  the  policy,  and  within 
the  accepted  definition  of  "inventory"  as  an 
itemized  list  or  schedule  of  articles,  usually 
including  a  notation  of  their  estimated 
values.  Miller  v.  Home  Ins.  Co.  (Md.) 
1918E-384.  (Annotated) 

13.  Where  such  inventory  was  made  with- 
in the  covenants  of  the  policy,  but  the  in- 
sured who  was  expressly  required  by  the 
policy  to  keep  a  set  of  books  during  the  con- 
tinuance of  the  insurance  and  to  keep  them 
in  a  fire  proof  safe,  failed  to  keep  any  books, 
his  consequent  inability  to  produce  such 
books  after  the  fire  avoided  the  policy.  Mil- 
ler v.  Home  Ins.  Co.  (Md.)  1918E-384. 

(Annotated) 

(4)   Provision  against  Keeping  Certain  Arti- 
cles. 

14.  "Storing"  of  gasolene. — Gasolene  was 
not  "stored,"  within  the  meaning  of  the 
terms  of  the  policies  of  insurance  involved, 
by  keeping  a  small  quantity  thereof  in  a 
closed  metallic  container  on  the  premises  for 
the  purpose  of  occasionally  cleaning  the 
wearing  apparel  of  the  assured;  and  the 
use  of  a  candle  in  a  room  where  such  gaso- 
lene was  found  did  not  avoid  the  policy. 
Hanover  F.  Ins.  Co.  v.  Eisman  (Okla.) 
1918D-288.  (Annotated/ 


FIRES— FIXTURES. 


105 


3.  Cancellation  of  Policy. 

15.  SufSciency  and  effect  of  notice.— Un- 
der Insurance  Law  (Consol.  Laws,  c.  28), 
§  122,  providing  that  any  insurer  shall  can- 
cel "any  policy  of  insurance  upon  request  of 
insured  and  return  the  amount  of  premium 
paid,  less  the  customary  short  rate  premium, 
notwithstanding  anything  in  the  policy  to 
the  contrary,  a  letter  written  by  insured, 
stating  that  he  wished  to  cancel  a  specified 
policy,  to  take  effect  at  once,  and  asking 
the  insurer  to  give  the  matter  immediate 
attention,  is  a  sufficient  notice  of  cancella- 
tion to  effect  a  cancellation;  there  being  no 
merit  in  the  contention  that  insured  merely 
expressed  a  wish  to  cancel  the  policy,  rather 
than  a  request  for  its  cancellation,  within 
the  meaning  of  the  statute.  Gately-Haire 
Co.  V.  Niagara  F.  Ins.  Co.  (N.  Y.)  1918C- 
115.  (Annotated) 

16.  L'nder  Insurance  Law,  §  122,  and  a 
provision  of  a  fire  insurance  policy  that  the 
policy  should  be  canceled  at  any  time  on  re- 
quest of  insured,  or  by  the  company  on  five 
days'  notice,  and  that,  if  the  policy  should 
be  canceled,  the  unearned  portion  of  the 
premium  should  be  returned  on  surrender  of 
the  policy,  the  company  retaining  the  cus- 
tomary short  rate,  a  written  request  by  in- 
sured for  cancellation  of  a  policy  effects  a 
cancellation,  though  the  policy  is  not  sur- 
rendered, and  the  unearned  portion  of  the 
premium  is  not  retiuned,  as  these  are  not 
conditions  precedent  to  a  cancellation.  Gate- 
Iv-Haire  Co.  v.  Niagara  F.  Ins.  Co.  (N.  Y.) 
1918C-115.  -(Annotated) 

17.  Under  Insurance  Law  §  122,  a  written 
request  by  insured  that  a  policy  be  can- 
celed effects  a  cancellation  ^t  once,  without 
anv  action  bv  the  insurer.  Gatelv-Haire  Co. 
V.  Niagara  F.  Ins.  Co.   (N.  Y.)   1$)18C-115. 

(Annotated) 

4.  Actions. 

18.  Parol    evidence    to    vary    policy. — The 

parol  evidence  rule  in  all  its  vigor  applies 
to  fire  policies,  and  cannot  be  resorted  to  to 
vary  the  terms  of  the  written  policy  save  in 
case  of  latent  ambiguity.  Connecticut  F. 
Ins.  Co.  V.  W.  H.  Roberts  Lumber  Co.  (Va.) 
1918E-104,o. 

19.  Extent  of  loss — Profits. — A  fire  policy, 
insuring  lumber  and  staves  owned  or  held 
in  trust  or  commission  by  plaintiff,  while 
stacked  or  piled  at  its  various  mill  sets  or 
yards  or  shipping  points,  does  not  extend 
to  plaintiff's  profits  which  might  result  from 
its  handling  of  lumber.  Connecticut  F.  Ins. 
Co.  V.  W..  H.  Roberts  Lumber  Co.  (Ya.) 
1918E-104.5.  (Annotated) 

20.  A  fire  policy  covering  any  interest 
plaintiff  might  have  in  lumber  at  the  time 
of  its  destruction  does  not  include  profits; 
therefore,  where  an  agent  of  the  insurer 
and  plaintiff  agreed  that  the  policy  sliould 
cover  any  such  interest,  parol  evidence  show- 
ing that  fact  is  not  admissible  to  show  that 
the  policy  included  profits;  there  being  no 
meeting  of  the  minds  of  the  parties  on  that 
question.  Connecticut  F.  Ins.  Co.  v.  W.  H. 
Roberts  Lumber  Co.   (Va.)   1918E-1045. 


21.  Instructions. — Instructions  given  and 
refused  examined.  Held,  there  was  no  pre- 
judicial error  therein.  Hanover  F.  Ins.  Co. 
V.  Eisman  (Okla.)    1918D-288. 


FIRES. 

Liability  of  railroad  for  damages  for  per- 
sonal injuries  caused  by  fire  started  by 
engine,  see  Railroads,  21,  22, 


FIREWTORKS. 

Liability  of  committee  having  charge  of  dis- 
play of  fireworks  for  injuries  to  spec- 
tators, see  Theaters  and  Amusements, 
5-12. 

FIXTURES. 

1.  Trade  fixtures. — What  constitutes  trade 
fixtures  is  a  question  of  intention  to  annex, 
and  not  as  to  the  character  of  the  physical 
annexation  to  the  realty,  and  is  usually  a 
mixed  (juestion  of  law  and  fact  for  the  jury. 
McClintock,  etc.  Co.  v.  Aetna  Explosives  Co. 
(Pa.)    1918E-1078. 

2.  Implied  right  to  remove. — In  the  ajb- 
sence  of  an  express  contract  as  to  trade 
fixtures,  there  is  an  implied  contract  per- 
mitting the  tenant  to  remove  them  at  the 
proper  time  and  in  a  proper  manner.  Mc- 
Clintock,  etc.  Co.  v.  Aetna  Explosives  Co. 
(Pa.)    1918E-1078. 

3.  Stipulation  in  lease  for  removal. — Par- 
ties to  a  lease  may  stipulate  what  machin- 
ery and  fixtures  may  be  removed  by  the 
tenant,  and,  when  they  have  done  so,  such 
stipulations  are  controlling.  Bache  v.  Cen- 
tral Coal.  etc.  Co.  (Ark.)   1918E-198. 

4.  Where  a  lease  reserves  to  the  lessee  the 
right  to  remove  "'machinery,  apparatus  and 
other  things  of  that  character,"  the  consid- 
eration of  the  question  of  trade  fixtures  be- 
comes unnecessary,  as  the  rights  of  the 
parties  with  respect  to  removal  of  such  prop- 
erty are  covered  by  the  contract.  McClin- 
tock,  etc.  Co.  V.  Aetna  Explosives  Co.  (Pa.) 
1918E-1078. 

5.  Under  a  lease  reserving  to  the  lessee 
the  right  to  remove  ''machinery,  apparatus 
and  other  things  of  that  character,"  under 
which  the  lessee,  engaged  in  working  out  an 
experimental  process  for  the  manufacture  of 
benzine  and  gasolene,  constructed  furnaces 
connected  with  various  appliances,  including 
a  framework  to  carry  pipes  and  support  the 
furnaces,  etc.,  the  term  "apparatus"  will  in- 
clude mechanical  devices  adapted  as  a  means 
to  an  end,  any  complex  instrument  or  ap- 
pliance for  the  specific  action  or  operation 
including  mechanical  and  chemical  instru- 
ments, a  full  collection  or  set  of  implements 
for  a  given  duty,  experimental  or  operative, 
and  in  connection  with  the  provision  as  to 
other  things  of  like  character,  entitled  the 
lessee  to  remove  such  furnaces  and  the  build- 
ing necessary  for  their  i)roper  oroteetinn  and 
operation;  the  fact  of  the  roof  covering  not 


106 


A:NN.  CAS.  DIGEST  (1918C-1918E). 


changing  their  character  so  as  to  make  it  dis- 
tinct from  the  contents  inclosed  so  as  to  pre- 
clude  its  removal.     McClintock,   etc.   Co.  v. 
Aetna  Explosives  Co.   (Pa.)   1918E-1078. 
Jj  (Annotated) 

6.  In  a  suit  in  replevin  by  the  successor  of 
the  lessee  of  a  coal  mine  to  recover  posses- 
sion of  certain  property  belonging  to  the 
mine  and  owned  by  the  lessee,  where  the 
lease  provided  that  at  expiration  the  lessee 
might  remove  all  machinery,  pit  cars,  mine 
rails,  etc.,  provided  it  had  carried  out  the 
terms  of  the  contract,  the  question  whether 
the  tipple  was  a  part  of  the  mining  equip- 
ment, and  removable  as  such  under  the  lease, 
is  properly  submitted  to  the  jury;  "machin- 
ery" being  a  more  comprehensive  word  than 
''machine,"  and  including  appurtenances 
necessary  to  the  working  of  a  machine,  since, 
under  the  mining  law,  mining  machinery  and 
apparatus  are  regarded  as  personalty  of  the 
lessee  that  may  be  removed  in  the  absence 
of  express  stipulation  to  the  contrary,  a 
stipulation  not  contained  in  the  lease. 
Bache  v.  Central  Coal,  etc.  Co.  (Ark.) 
1918EM98.  (Annotated) 

7.  Time  for  removal. — ^Where  the  lease  of 
a  coal  mine  provided  that  the  lessee  might 
remove  machinery,  etc.,  at  expiration  of  the 
lease,  if  it  had  carried  out  the  terms  of  the 
contract,  not  expressly  stipulating  that  the 
right  must  be  exercised  before  expiration, 
and  the  successor  of  the  lessee  proceeds  ex- 
peditiously to  remove  its  property  four  days 
before  a  ten-day  extension  of  the  lease  ex- 
pires, as  soon  as  it  is  advised  that  a  pro- 
spective purchase  of  the  property  by  the 
lessor  is  off,  its  right  to  remove  its  prop- 
erty does  not  terminate  instantly  upon  ex- 
piration of  the  lease.  Bache  v.  Central  Coal, 
etc.  Co.   (Ark.)    1918E-198. 

8.  Question  of  law. — So  far  as  the  question 
of  the  tenant's  right  to  remove  fixtures  is 
governed  by  the  express  provisions  of  the 
lease,  it  is  a  question  of  law.  McClintock, 
etc.  Co.  V.  Aetna  Explosives  Co.  (Pa.)  1918E- 
1078. 


therein.      Perry    v.    Diamond    Ice,    etc.    Co. 
(W^sh.)     1918C-«91.  (Annotated) 

3.  The  real  issue  being  whether  eggs  ac- 
quired their  foreign  and  unnatural  flavor 
after  being  placed  in  the  defendant's  cold 
storage  plant,  any  error  in  admission  of 
evidence  of  test  of  the  eggs  before  stored  for 
natural  deterioration  is  not  prejudicial.  Per- 
ry V.  Diamond  lee,  etc.  Co.  (Wash.)  1918C- 
891.  (Annotated) 

4.  Evidence  in  an  action  for  injury  to  eggs 
in  cold  storage  is  held  to  be  sufficient  to 
show  that  when  stored  they  were  free  from 
unnatural  flavor  or  odor,  and  acquired  it 
while  in  the  warehouse,  making  the  ques- 
tion of  negligence  as  the  producing  cause 
one  for  the  jury.  Perry  v.  Diamond  Ice, 
etc.  Co.    (Wash.)    1918C-891.        (Annotated) 


FORECI.OSURE. 

Of  mortgages,  see  Chattel  Mobtoaqes,  4-8; 

Mortgages,  10-14. 
Of  pledge,  see  Pledge,  4. 


FOREIGN   CORPORATIONS. 

See  CoRPOEATioNS,  45-53. 

Foreign  benefit   society   as   subject  to  local 

statutes,  see  Beneficial  Associations, 

2. 
Priority  of  claim  for  wages  against  insolvent 

foreign   corporation,   see   Cobpobations, 

43. 


FORFEITXntE. 

Of  benefits  of  employees  of  relief  society,  see 

Master  and  Servant,  27. 
Of  charter   of  railroad  company,   see  Eail- 

ROADS,   1-3. 
Waiver  of  forfeiture  of  insiirance  policy,  see 

Life  Insurance,  3. 


FOOD. 

1.  Allegations  of  negligence  in  storage. — ^A 

complaint,  alleging  that  plaintiff's  eggs, 
when  placed  in  storage  in  defendant's  ware- 
house, were  fresh  and  in  good  condition,  and 
while  stored  there  became  tainted  with  a 
foreign  and  unnatural  flavor,  is  a  sufficient 
pleading  of  negligence,  at  least  with  an  al- 
legation that  plaintiff  does  not  know  the 
specific  acts  of  defendant's  negligence;  proof 
'  thereof  making  a  prima  facie  case.  Perry 
v.  Diamond  Ice,  etc.  Co.  (Wash.)  1918C-891. 
s  (Annotated) 

!  2.  Evidence. — On  the  issue  of  the  plain- 
tiff's eggs  having  acquired  their  foreign  and 
unnatural  flavor  while  in  the  defendant's 
cold  storage  plant,  evidence  that  another's 
eggs  placed  in  the  same  room  with  the 
plaintiff's  eggs  came  out  with  the  same  for- 
eign flavor  is  'admissible,  though  it  be  not 
shown  that  they  did  not  have  it  when  placed 


FORMAL  PARTIES. 

See  Parties  to  Actions,  1, 

FORMER  ADJUDICATION. 

See  Judgments,  10-17. 

Decree  in  divorce  suit  as  conclusive  of  ques- 
tion of  alimony,  see  Divorce,  6-9. 

FORMER  JEOPARDY. 

1.  Identity  of  offenses. — Whether  an  indict- 
ment is  for  the  same  offense  ,as  that  charged 
in  a  former  indictment  under  which  there  has 
been  a  final  judgment  is  not  determined  by 
an  inspection  and  comparison  of  the  indict- 
ments under  a  plea  setting  up  the  former 
judgment  in  bar.  People  v.  Brady  (HI.) 
19180-540. 


FOUKTEEXTH  AMENDMENT— FRAUD. 


107 


2.  On  the  trial  under  such  plea  the  party 
accused  and  the  particular  offense  may  be 
shown  bv  parol  testimony.  People  v.  Brady 
(111,)   19i8C-540. 

3.  Nolle  prosequi. — After  a  jury  is  empan- 
eled and  sworn,  the  prosecutor  cannot  nolle 
pros,  the  indictment  or  any  count  without 
the  consent  of  accused.  People  v.  Brown 
(111.)  1918D-772. 

4.  Necessity  of  plea. — ^A  defense  of  former 
acquittal  or  conviction  may  be  made  under 
the  plea  of  not  guilty.  People  v.  Brady  (111.) 
1918C-540. 


FOURTEENTH  AMENDMENT. 

Assessment  for  improvements  by  front  foot 
rule  as  violating,  see  Taxation,  49. 

Authority  of  supreme  court  to  supervise 
state  exercise  of  police  power,  see  CoN- 

STITXTTIOXAL   LaW,    4. 

CJharter  provision  entitling  only  resident 
owners  to  sign  remonstrance  against  pub- 
lic improvement  as  conflicting  with,  see 
Taxation,  47. 


FRANCHISES. 

See  Corporations;  Ferries;  Railroads; 
Street  Eailwats. 

Franchise  regulating  placing  of  wires  as  af- 
fecting liability  of  electric  company  for 
injuries,  see  ELECTRioixy,  11. 

1.  Extension  of  pre-existing  right. — ^Where 
a  single  spur  track  was  put  in  when  horse 
power  Mas  used  by  a  street  railway  before 
the  adoption  of  the  present  constitution  re- 
quiring franchises  upon  public  streets  to  be 
sold  to  the  highest  bidder,  a  subsequent  con- 
sent by  the  city  to  a  double  spur  track  with 
a  loop,  necessary  on  account  of  the  substitu- 
tion of  motor  power,  is  not  the  granting  of 
an  additional  franchise,  but  the  conforming 
of  an  old  turnout  to  modern  conditions,  to 
which  the  street  railway  possesses  a  prop- 
erty right.  Dayton  v.  South  Covington,  etc. 
St.*R.  Co.  (Ky.)  1918E-229. 


FRAUD. 

1.  What  Constitutes: 

a.  In  General.    107. 

b.  Misrepresentation  as  to  Value,  107. 

c.  Violation  of  Rules  in  Voting  Contest, 

108. 

2.  Actions,   308. 

See  Fbatjdulent  Sales  and  Conveyances; 
Rescission,   Cancell-4.tion  and  Retor- 

3IATION. 

As  ground  for  setting  aside  award  of  arbitra- 
tors, see  Arbitratiox  and  Award,  3. 

Fraudulent  misrepresentation  avoiding  fire 
insurance  policy,  see  Fire  Insurance. 
5,  6. 

In  agreement  with  subscribing  stockholders, 
see  Corporations,  30. 


In  procurement  of  contract  for  purchase  of 
land  as  affecting  bona  fide  purchaser,  see 
Vendor  and  Purchaser,  20-23. 

In  sale  of  public  lands,  see  Public  Lands, 
2,  3,  10-21. 

Secret  intention  to  refuse  marital  inter- 
course as  fraud,  see  Marriage,  11. 

Use  of  terms  "fraud"  and  "fraudulent"  in 
instructions,  see  Instructtions,  1. 

What  constitutes  undue  influence,  see  Un- 
DXJE  Influence,  1,  2. 

1.  What  Constitutes. 

a.  In  General 

1.  Intent  to  deceive. — To  constitute  fraud, 
it  is  unnecessary  that  a  statement  to  made 
with  the  intention  to  deceive,  if  it  is  a  state- 
ment of  fact,  or  a  statement  purporting  to  be 
a  fact  but  not  true  as  a  matter  of  fact.  Mc- 
Neer  v.  Norfleet   (Miss.)   1918E-436. 

2.  Necessity  of  scienter. — ^Where  the  repre- 
sentations of  a  seller  of  land  are  false,  are  of 
material  facts,  and  are  relied  upon  by  the 
buyer,  it  is  immaterial,  in  the  latter's  suit 
for  a  rescission,  whether  the  representations 
are  knowingly  false.  Jeffreys  v.  Weekly 
(Ore.)  1918D-690. 

b.  Misrepresentation  as  to  Value. 

3.  Misstatement  as  to  valuation  by  ap- 
praisers.— False  and  fraudulent  representa- 
tions in  the  selling  of  property  by  an  ad- 
ministrator as  to  the  value  placed  upon  it 
by  appraisers  will  not  sustain  an  action  for 
deceit  in  the  sale  of  the  property.  Harlow  v. 
Perry   (Me.)   1918C-37. 

4.  Misrepresentation  of  rental  value. — A 
wilful  misrepresentation  by  a  vendor  affirm- 
ing that  the  rental  value  of  property  sought 
to  be  exchanged  or  sold  was  greater  than  in 
truth  it  was,  where  the  truth  in  regard  to 
such  representation  was  unknown  to  the  pur- 
chaser, and  where,  under  the  circumstances, 
he  was  justifiea  in  relying  upon  such  repre- 
sentation, constitutes  actionable  fraud.  Wil- 
son V.  Robinson   (N.  Mex.)   1918C-49. 

5.  Representation  of  invoice  value. — A  rep- 
resentation by  the  plaintiff  that  the  stock  of 
goods  which  he  offered  in  exchange  for  other 
property  was  of  the  invoice  value  of  $12,000 
was  one  of  fact,  not  a  mere  opinion  upon  the 
question  of  value,  and  its  falsity  constituted, 
actionable  fraud.  Knopfler  v.  Flynn  (Minn.) 
1918E-538. 

6.  The  falsity  of  the  representation  was 
not  discovered  until  after  the  acceptance  of 
the  goods;  such  acceptance  did  not  therefore 
bar  a  claim  for  relief  from  the  fraud.  Knop- 
fler  V.    Flynn    (Minn.)    1918E-538. 

7.  An  inventory  or  list  of  the  goods  taken 
in  the  manner  stated  in  the  opinion  soon 
after  the  delivery  and  acceptance  of  the  same, 
held,  following  Itasca  Cedar  &  Tie  Co.  v.  Mc- 
Kinley,  124  Minn.  183,  properly  received  in 
evidence.  Knopfler  v.  Flynn  (Minn.)  1918E- 
538. 

8.  The  invoice  or  cost  price  of  the  goods 
held  sufficiently  established  by  competent  evi- 
dence.   Knopfler  v.  Flynn  (Minn.)  1918E-538. 


108 


ANN.  CAS.  DIGEST  (1918C-iyibE;. 


9.  The  eviilenco  sustains  the  findings  of  the 
trial  court,  and  there  were  no  errors  in  the 
admission  or  exclusion  of  evidence.  Knopfler 
V.  Flynn  (Minn.)  1918E-538. 

c.  Violation  of  Rules  in  Voting  Contest. 

10.  Where  defendant,  in  an  action  for  dam- 
ages for  fraud,  organizes  a  popularity  con- 
test to  increase  the  circulation  of  his  news- 
paper, and  plaintiff,  with  other  contestants, 
secures  subscriptions  for  the  paper  in  order 
to  secure  votes,  defendant  cannot,  at  the  clos- 
ing of  the  contest,  escape  liability  for  fraud- 
ulent balloting  or  counting  of  votes  by  turn- 
ing the  contest  over  to  another,  nor  can  he 
countenance  fraudulent  voting;  the  relation 
of  the  parties  being  contractual  in  character. 
Smead   v.  .Stearns    (Iowa)    1918C-745. 

(Annotated) 

11.  Where  the  owner  of  a  newspaper  in- 
stitutes a  popularity  contest  in  which  votes 
are  given  for  subscriptions  to  his  paper  in 
order  to  increase  his  circulation  so  as  to  per- 
mit him  to  bid  for  the  county  printing,  for 
which  subscriptions  are  required  to  be  bona 
fide,  thereby  requiring  an  act  of  the  sub- 
scriber to  make  them  valid,  he  cannot  accept 
money  from  one  man  for  a  large  number  of 
subscriptions  without  names  of  the  supposed 
subscribers,  where  he  has  made  the  rule  that 
the  subscriptions  must  be  bona  fide,  and  his 
act  in  so  accepting  money  is  a  fraud  upon  the 
other  contestants  than  the  one  for  whom  the 
votes  are  counted,  for  which  the  defendant 
is  liable,  although  the  depositor  of  the  money, 
after  the  contest,  furnishes  a  list  of  subscrib- 
ers covered  by  his  payment.  Smead  v. 
Stearns  (Iowa)  1018C-745.  (Annotated) 

12.  Acquiescence  of  party  defrauded. — 
Where  defendant,  in  an  action  for  damages 
for  fraud,  organizes  a  popularity  contest  to 
increase  the  circulation  of  his  newspaper,  and 
plaintiff,  with  other  contestants,  secures  sub- 
scriptions for  the  paper  in  order  to  secure 
votes,  the  fact  that  plaintiff's  husband  pro- 
tests the  counting  of  invalid  votes,  but  tells 
the  canvassers  that  the  count  "was  up  to 
them,"  is  no  acquiescence  in  the  decision  of 
the  canvassers  to  count  such  votes.  Smead 
V.  Stearns   (Iowa)   1918C-745.       (Annotated) 

13.  Where  defendant  organizes  a  popular- 
ity contest  to  increase  the  circulation  of  his 
newspaper,  and  plaintiff,  with  other  contest- 
ants, secures  subscriptions  for  the  paper  in  or- 
der to  secure  votes,  and  on  the  closing  of  the 
contest  plaintiff  agrees  that  certain  persons 
shall  act  as  judges,  she  does  not  thereby  ac- 
quiesce in  the  counting  of  votes  not  secured 
according  to  the  rules  of  the  contract,  espe- 
cially where  she  enters  protest  at  the  time 
against  their  being  counted,  and  a  plea  of  her 
acquiescence  is  no  defense  to  her  action  for 
fraud.     Smead  v.  Stearns  (Iowa)   1918C-745. 

(Annotated) 

2.  Actions. 

14.  Proof. — Fraud  is  ordinarily  established 
by  circumstantial  evidence.  State  v.  Hyde 
(Ore,)  1918E-C88. 

15.  Instructions. — ^Where  defendant,  in  an 


action  for  damages  for  fraud,  organized  a 
popularity  c  )ntest  to  increase  the  circulation 
of  his  newspaper,  and  plaintiff,  with  other 
contestants,  secured  subscriptions  for  the 
paper  in  order  to  secure  votes,  evidence  that 
on  the  closing  of  the  contest  defendant  told 
the  one  in  custody  of  the  ballot  boxes  to  ac- 
cept money  for  votes  if  anyone  came  along, 
and  soon  thereafter  the  father  of  one  contest- 
ant appeared  and  deposited  $100,  is  sufficient 
to  warrant  the  giving  of  an  instruction  on 
conspiracy.  Smead  v.  Stearns  (Iowa) 
1918C-745.  (Annotated) 


FRAUDS,  STATUTE  OF. 

Parol  agreement  for  rescission  of  written 
contract  for  sale  of  goods,  see  Sales,  7. 

Parol  agreement  to  purchase  land  for  mort- 
gagor on  foreclosure  of  mortgage  as 
creating  implied  trust,  see  Trusts  and 
Trustees,  8. 

Parol  trust  contradicting  deed,  see  Trusts 
AND  Trustees,  9. 

1.  Contract  for  joint  purchase  from  third 
person. — An  oral  agreement,  Ijetween  two 
plaintiffs  and  a  corporation,  to  buy  jointly  a 
stock  of  goods  and  fixtures  at  an  insolvency 
sale,  that  plaintiffs  shall  furnish  half  and  the 
corporation  half  of  the  price,  and  that,  when 
the  property  is  purchased,  part  shall  be  sold 
and  the  proceeds  divided,  part  divided  at  in- 
ventory value,  and  part  divided  in  specie,  ia 
not  within  St.  1915,  §  2308,  the  statute  of 
frauds  relating  to  contracts  for  the  sale  of 
goods,  or  section  1684t  (4),  the  uniform  sales 
act,  to  the  same  effect.  Stack  v.  Roth  Bros. 
Co.  (Wis.)  1918C-742.  (Annotated) 

2.  Contract  partly  within  statute. — Where 
the  several  stipulations  of  a  several  contract 
are  so  interdependent  that  the  parties  cannot 
reasonably  be  considered  to  have  contracted 
but  Avith  a  view  to  the  performance  of  the 
contract  as  a  whole  and  any  part  of  the  con- 
tract violates  the  statute  of  frauds,  no  recov- 
ery can  be  had  upon  any  part  of  it;  but  if 
the  several  stipulations  are  not  so  interde- 
pendent but  that  a  distinct  engagement  as  to 
any  one  stipulation  may  be  fairly  and  reason- 
ably extracted  from  the  whole,  then  there 
maj'^  be  a  recovery  on  such  distinct  engage- 
ment, whenever  it  is  clear  of  the  statute 
of  frauds,  though  the  other  stipulations  are 
in  violation  of  the  statute.  Godefroy  v.  Hupp 
(Wash.)  1918E-494.  (Annotated) 

3.  Under  Rem.  &  Bal.  Code,  §  5289,  an  oral 
contract  for  the  payment  of  a  commission  for 
exchange  of  personal  property  for  realty  is 
void,  so  far  as  realty  is  concerned,  and  void 
in  its  entii'ety  unless  the  contract  is  divisible. 
Godefroy  v.  Hupp  (Wash.)  1918E-^94. 

(Annotated) 

4.  Recovery  back  of  part  payment  under 
verbal  contract. — A  party  who  has  repudiated 
his  verbal  contract  for  the  sale  of  land  cannot 
invoke  the  statute  of  frauds  to  enable  him  to 
retain  what  he  has  received  of  the  purchaser 
under  it,  in  part  performance  thereof.  Jones 
V.  Ceres  Invest.  Co.  (Colo.)  1918C-429. 

(Annotated) 


FRAUDULENT  SALES  AND  CONVEYAXCES— GAMING.     109 


FRAUDULENT  SAL£S  AND  CONVEY- 
ANCES. 

Validity  of  postnuptial  agreement,  see  Hus- 
band A>D  Wife,  12. 

1.  Mortgage  in  excess  of  actual  debt. — A 
mortgage  executed  to  secure  a  sum  far  in  ex- 
cess of  the  mortgagor's  debt  to  the  mortgagee 
is  held  to  be  fraudulent  and  void  as  to  cred- 
itors. Union  Securities  Co.  v.  Smith  (Wash.) 
1918E-710.  (Annotated) 

2.  Subsequent  creditors.  —  The  execution 
and  registration  of  deeds  to  a  wife  and  a  trus- 
tee at  a  time  when  the  grantor  is  not  indebt- 
ed, are  not  fraudulent  as  to  subsequent  cred- 
itors. Harris  v.  Carolina  Distributing  Co. 
(N.  C.)    1918C-329. 


FREEZING. 

Liability    of    carrier    for    loss    of    goods    by 
freezing,  see  Carriers  of  Goods,  3,  5. 


FRONT  FOOT  RULE. 

Assessment  for  improvement  by  front  foot 
rule  as  violating  fourteenth  amendment, 
see  Taxation,  49. 


FUEI.. 

Power  of  city  to  maintain  fuel  yard,  see  Mu- 
nicipal Corporations,  12.' 


FUGITIVE. 

Who  is   fugitive   from  justice   within   extra- 
dition laws,  see  Extradition,  2. 


FUTURES. 

Cancellation  of  securities  given  to  borrow 
money  for  use  in  dealing  in  futures,  see 
Gaming,  5,  6. 

Purchase  of  futures  as  gaming,  see  Gaming, 
1. 

Recovery  of  losses  under  contract  for  pur- 
chase of  futures,  see  Gaming,  2,  3. 


GAMING. 

Definition    of    stakeholder,    see    Words    and 
Phrases,  10. 

1.  Purchase  of  "futures"  as  gaming. — A 
contract  for  the  purchase  and  delivery  of  a 
commodity  in  the  future,  and  for  the  payment 
of  the  difference  in  price  arising  out  of  the 
rise  and  fall  in  the  market  above  or  below  the 
contract  price,  is  a  "wager"  on  the  future 
price  of  the  commodity,  and  is  therefore  void 
when  the  real  intent  of  the  parties  is  simply 
to  speculate  on  the  rise  and  fall  of  prices, 
and  the  goods  are  really  not  to  be  delivered. 
Cohn  V.  Brinson   (Miss.)   1918E-134. 


2.  Recovery  back  of  losses. — Under  Laws 
1908,  c.  118,  prohibiting  dealings  in  futures, 
and  declaring  such  contracts  unlawful,  and  by 
section  9  providing  that  the  wife,  etc.,  of  a 
person  sustaining  a  loss  in  future  transac- 
tions may  within  five  ye<trs  recover,  by  suit, 
the  amount  so  lost  as  liquidated  damages 
from  the  broker,  agent,  or  intermediary  ne- 
gotiating such  contractions,  a  bank  and  trust 
company  doing  a  regular  banking  business, 
not  representing  any  brokers  in  futures,  not 
receiving  market  quotations  or  taking  orders 
for  future  contracts,  but  merely  loaning 
money  to  one  dealing  in  futures,  is  not  an 
'agent  or  intermediary,"  and  hence  the  bor- 
rower's wife  cannot  recover  back  an  alleged 
loss.     Cohn  V.  Brinson  (Miss.)  1918E-134. 

(Annotated) 

3.  Under  Code  1906,  §  2302,  giving  a  right 
to  the  wife,  etc.,  of  any  one  losing  and  paying 
money  at  gaming  or  wagering,  a  right  to  re- 
cover it,  without  expressly  giving  a  wife  the 
right  to  recover  from  a  bank  money  knowing- 
ly lent  or  advanced  for  the  purpose  of  gam- 
bling, and  section  2303,  declaring  "futures"^ 
unlawful,  and  giving  her  the  right  to  sue  for 
and  recover  money  lost  and  paid  on  future* 
from  the  principal  or  agent  knowingly  receiv- 
ing the  money  on  such  illegal  transactions, 
the  wife  of  one  dealing  in  cotton  futures  di- 
rectly with  brokers  in  another  state  cannot 
recover  money  lent  or  advanced  by  a  bank, 
with  knowledge  of  the  borrower's  dealings, 
and  never  repaid  except  by  renewals  forming 
a  part  of  the  consideration  of  a  note  secured 
by  the  mortgage  of  her  homestead  and  other 
property.  Cohn  v.  Brinson  (Miss.)  1918E- 
134.  (Annotated) 

4.  Recovery  from  stakeholder. — Money  de- 
posited with  a  stakeholder  on  account  of  a 
gambling  contract  may  be  recovered  from  the 
stakeholder  while  in  his  hands  by  the  person 
making  the  deposit.  Martin  v.  Francis  (Ky.) 
1018E-289. 

5.  Cancellation  of  securities  given  in  gaming 
consideration. — Under  Code  1906,  §  2300,  ren- 
dering absolutely  void  and  unenforceable  any 
contract  for  the  reimbursing  or  repayment  of 
any  money  knowingly  lent  or  advanced  for 
the  purpose  of  gambling,  and  section  2301, 
providing  that  any  mortgage  or  conveyance 
of  any  real  estate  to  satisfy  or  secure  money 
loaned  or  advanced  for  such  purpose  shall 
vest  in  the  wife  and  children  of  the  mortga- 
gor the  whole  title  of  the  mortgagor  as 
thoxigh  he  had  died  intestate,  the  wife  of  one 
to  whom  defendant  bank  knowingly  lent  or 
advanced  money  for  use  in  dealing  in  cotton 
futures,  unpaid  except  by  renewals  forming 
a  part  of  the  consideration  for  a  note  secured 
by  a  mortgage  executed  by  herself  and  hus- 
band, including  their  homestead  and  her  sep- 
arate property,  is  entitled  to  have  the  mort- 
gage canceled,  whereupon  the  property  would 
immediately  vest  in  herself  and  children,  if 
any.    Cohn  v.  Brinson  (Miss.)   1918E-134. 

6.  In  such  case  it  was  immaterial  that  the 
borrower  had  the  right  to  buj'  cotton  futures 
by  mail  or  wire  directly  from  brokers  in  an- 
other state,  since  it  is  the  policy  of  the  law 


no 


AxVN.  CAS.  DIGEST   (1918C-1918E). 


to  prohibit  gambling  of  any  kind  and  charac- 
ter.   Oohn  V.  Brinson  (Miss.)  1918E-134. 

7.  Set-off  of  previous  winnings. — ^Where  in 
an  action  to  recover  money  lost  at  gaming  it 
is  claimed,  and  evidence  is  offered  tending  to 
prove,  that  part  of  the  money  alleged  to  have 
been  paid  by  the  plaintiff  to  the  defendant 
was  in  fact  money  won  by  the  plaintiff  and 
owing  to  him  from  the  defendant  in  a  for- 
mer gambling  transaction,  it  is  error  for  the 
court  to  refuse  to  charge  the  jury  that  if  it 
find  this  claim  to  be  true,  then  the  plaintiff 
cannot  recover  that  part  of  his  losses  in  the 
subsequent  transaction  represented  by  the 
credit  given  by  him  by  the  defendant  for 
money  won  by  plaintiff  in  a  former  gambling 
transaction  and  in  defendant's  possession  at 
the  time  the  credit  was  given.  Hutton  v. 
Curry  (Ohio)   1918C-770.  (Annotated) 


GARBAGE. 

Collection  of  garbage  as  governmental  func- 
tion, see  Municipal  Corporations,  21. 

Garbage  collector  as  independent  contractor, 
see  Independent  Conteactobs,  3. 


GARNISHMENT. 

See  Attachment;  Execution. 

Priority  of  assignee  of  proceeds  of  building 
contract  as  against  garnishment,  see  As- 
signments, 8,  9. 

1.  Duties  of  garnishee. — In  an  action  by  a 
plaintiff  against  a  nonresident  defendant, 
who  is  served  with  notice  of  the  same  only 
by  publication,  it  is  the  duty  of  a  garnishee 
therein  to  notify  such  principal  defendant  of 
such  garnishment  proceedings,  if  able  to  do 
so  and,  also,  to  interpose  in  behalf  of  such 
principal  defendant  any  defense  thereto  of 
which  he  is  cognizant  and  which  he  is  able 
to  make. 

(a)  Where  such  action  is  upon  a  claim  or 
debt  assigned  to  such  plaintiff  in  violation 
of  a  statute  of  another  state  inhibiting  such 
assignment  for  the  purpose  of  attachment, 
garnishment,  or  other  process,  outside  of 
such  other  state,  when  the  creditor,  the  debt- 
or (being  a  citizen  of  such  other  state),  and 
the  person  or  corporation  owing  the  money 
intended  to  be  reached  by  the  proceedings  in 
attachment  or  garnishment  are  all  within 
the  jurisdiction  of  such  other  state,  so  that 
the  res  may  be  as  well  seized  in  such  other 
state  if  not  exempt  by  law,  such  violation 
of  such  statute  of  such  other  state  is  a  de- 
fense to  such  garnishment  proceedings  and 
should  be  interposed  bv  such  garnishee.  St. 
Louis,  etc.  R.  Co.  v.  Crews    (Okla.)    1918C- 

823.         ,;.     ,    ;^,,, 

2.  (b)  As,  In  such  cases,  the  res  is  intangi- 
ble and  cannot  be  impounded  in  either  state 
otherwise  than  by  summons  or  like  process, 
the  garnishment  process  being  a  summons, 
the  same  is  regarded  as  impounded  in  that 
state  in  which  such  process  is  first  served  or 
jurisdiction  thereof  first  acquired:  and,  upon 
the  principle  of  "qui  prior  est  tempore  potior 


est  jure,"  the  pendency  in  another  state  of  a 
prior  action  by  such  principal  defendant,  as 
plaintiff,  against  such  garnishee,  as  defend- 
ant, is  a  defense  against  such  garnishment 
proceedings  and  should  be  interposed  by  such 
garnishee. 

(c)  A  garnishee  who  has  not  given  such 
notice  and  interposed  such  defenses  is  guilty 
of  negligence  of  duty  to  his  creditor  (such 
principal  defendant)  and  will  not  be  allowed 
to  set  up  payment  of  a  judgment  against 
him  in  such  garnishment  proceedings  as  a 
defense  to  an  action  by  such  creditor  against 
him  for  the  debt  so  garnisheed. 

(d)  Such  garnishee,  to  be  entitled  to  set 
up  payment  of  such  judgment  against  him 
in  such  garnishment  proceedings  as  a  defense 
to  an  action  against  him  by  such  creditor  for 
the  debt  so  garnisheed,  should  allege  and, 
prove  that  he  discharged  his  duty  to  such 
creditor  in  respect  to  giving  sucli  notice  and 
making  such  defenses  in  such  garnishment 
proceedings.  St.  Louis,  etc.  R.  Co.  v.  Crews 
(Okla.)   1918C-823.  (Annotated) 

3.  Payment  by  garnishee — Protection  in 
another  jurisdiction. — A  judgment  against  a 
garnishee  in  a  court  that  did  not  acquire  ju- 
risdiction of  the  person  of  the  principal  de- 
rendant,  which  does  not  recite  that  such  gar- 
nishee disclosed  any  defensive  matter  or  any 
fact  other  than  an  admission  of  his  indebt- 
edness to  the  principal  defendant,  is  not,  as 
against  such  principal  defendant  and  in 
favor  of  such  garnishee,  an  adjudication  of 
any  issue  as  to  whether  such  garnishee  dis- 
charged his  duty  to  such  principal  defendant 
in  such  garnishment  proceedings  in  respect 
to  notice  and  defenses. 

(a)  Such  judgment  would  not  be  accorded 
faith  or  credit  as  such  adjudication  in  the 
state  in  which  it  is  rendered,  nor  in  any 
other  state. 

(b)  A  refusal  of  a  court  of  a  state  other 
than  the  one  in  which  it  was  rendered  to 
give  such  judgment  effect  as  an  adjudication 
of  such  issue  between  the  garnishee  and  the 
principal  defendant  is  not  a  denial  of  the 
^ame  the  full  faith  and  credit  to  which  it  is 
entitled  under  section  905.  Rev.  St.  U.  S.  13 
Fed.  St.  Ann.  [2d.  ed]  212.  St.  Louis,  etc., 
R.  Co.  v.  Crews  (Okla.)  19180-823. 

(Annotated) 


GASOLENE. 

Regulation  of  storage,  see  Explosions  and 
Explosives. 


GIFTS. 

1.  Gross  or  net  income. — A  gift  of  income 
ordinarily  means  the  net  and  not  the  gross 
income.  Parkhurst  v.  Ginn  (Mass.)  1918E- 
982. 


GOOD  FAITH. 

In  charging  commission  of  crime,  see  Libel 
AND  Slander. 


GUARAIs^TY— HAWKERS  AXD  PEDDLERS. 


Ill 


In   fiirnLsliing   prescription    for    intoxicating 

liquors,  see  Intoxicating  Liquobs,  6. 
Purchaser    in   good    faith,    see  Vendor   and 

PXTBCHASEE,   14-23. 


GUARANTY. 

Admissibility  of  declarations  or  admissiona 
of  principal  as  against  guarantor,  see 
Admissions  and  Declabations,  7-9. 

Change  of  name  of  corporate  principal  in 
continuing  guaranty  contract  as  affect- 
ing liaJsility  thereon,  see  Cokporations, 
2. 

1.  Construction. — While  contracts  of  guar- 
anty must  be  strictly  construed,  they  must 
be  construed,  like  other  contracts,  according 
to  the  intention  of  the  parties.  Scovill  Mfg. 
Co.  V.  Cassidy   (111.)   1918E-602. 

2.  Continiiing  or  limited. — Where  a  writ- 
ten guaranty  shows  that  the  parties  look  to 
a  future  course  of  dealing  or  a  succession 
of  credits,  it  is  generally  considered  a  con- 
tinuing guaranty.  Scovill  Mfg.  Co.  v.  Cas- 
sidy   (111.)    1918E-602.  (Annotated) 

3.  A  guaranty,  reciting  that  the  principal 
had  given  an  order  to  the  guarantee  for  the 
manufacture  of  goods  and  expected  in  future 
to  give  other  orders,  and  agreeing,  in  con- 
sideration that  the  guarantee  would  manu- 
facture and  deliver  all  such  goods  to  the 
principal  as  required  "from  time  to  time," 
to  become  surety  for  the  punctual  payment 
by  the  principal  of  all  money  "which  shall 
become  due"  for  goods  "which  have  been  or 
shall  hereafter  be  ordered"  by  the  principal, 
etc.,  is  a  continuing  guaranty.  Scovill  Mfg. 
Co.  V.  Cassidv  (111.)   1918E-6b2.   (Annotated) 

4.  Limitation  as  to  amount. — In  a  guar- 
anty of  prompt  payment  for  goods  to  be 
ordered,  the  effect  of  a  provision  to  make  up 
deficiency  in  such  payment  not  exceeding 
$5,000,  is  not  that  the  guarantors  shall  be 
liable  only  if  the  goods  ordered  and  delivered 
shall  not  exceed  in  value  $5,000,  but  that 
their  liability  shall  be  limited  to  that 
amount.  Scovill  Mfg.  Co.  v.  Cassidv  (111.) 
1918P:-602. 

5.  Evidence. — In  action  on  a  guaranty  cor- 
poration's orders  for  goods,  evidence  is  held 
to  be  sufficient  to  show  delivery  of  the  goods 
to  the  corporation,  and  its  failure  to  pav  for 
them.  Scovill  Mfg.  Co.  v.  Casaidy  "(111.) 
1918E-602. 


GUARDIAN  AND   W^ARD. 

Effect  of  appointment  of  guardian  for  prin- 
cipal as  affecting  contract  for  employ- 
ment of  agent,  see  Agency,  9. 

Guardian  ad  litem,  see  Infants.  1-."). 

Guardian  for  alien  minor,  see  Aliens,  6. 

1.  Scope  of  order  for  sale  of  land. — A  de- 
cree of  the  probate  court  empowering  a  guar- 
dian to  sell  certain  described  real  estate, 
without  reference  to  a  certain  lot  and  em- 
bracing only  certain  property,  is  tlie  sole 
authority  for  the  sale,  and  gives  her  no  right 


to  impose  any  servitude  upon  the  lot.     Sil- 
verman v.  Betti  (Mass.)   1918C-90. 


GUEST. 

Injury  to  person  riding  as  guest  in  auto- 
mobile, see  Automobiles,  14-17. 

Liability  of  innkeeper  for  insult  to  guest, 
see  Innkeepebs,  1,  2. 


HABEAS  CORPUS. 

Review  of  proceedings  in  juvenile  court  by 
habeas  corpus,  see  Infants,  14,  15. 

1.  Nature  and  scope  of  remedy. — The  writ 
of  habeas  corpus  cannot  be  made  to  serve 
the  purpose  of  an  appeal  or  writ  of  error. 
State  V.  West   (Tenn.)   1918D-749. 


HABENDUM  CLAUSE. 

See  Deeds,  5. 

HAVTKERS    AND    PEDDLERS. 

1.  Discrimination. — A  city  ordinance,  re- 
quiring by  subdivision  "a"  a  license  fee  of 
$100  per  year,  payable  in  advance,  to  peddle 
or  take  orders  for  any  fresh  meat  or  any 
goods,  wares,  or  mechandise  of  a  general 
character,  or  for  teas,  coffees,  spices,  extracts, 
clothing,  dresses;  knit  goods,  or  underwear, 
by  subdivision  "b"  a  fee  of  $7.50  per  quarter 
for  peddling  or  taking  orders  for  any  or  all 
kinds  of  fruit,  vegetables,  farm  or  dairy  pro- 
ducts, fish  or  poultry,  and  by  subdivision 
"c"'  a  license  fee  of  $7  per  quarter  or  $3  per 
month  for  taking  orders  for  any  literature, 
music,  or  small  articles  for  household  use  or 
ornament  manufactured  by  the  peddler,  is 
in  violation  of  Comp.  Laws  1907,  §  206, 
subd.  87,  providing  that  all  license  fees  and 
taxes  shall  be  uniform  in  respect  to  the 
class  upon  which  they  are  imposed,  as  dis- 
criminating against  those  who  may  peddle 
or  solicit  any  of  the  articles  mentioned  in 
subdivision  "a"  and  in  favor  of  those  ped- 
dling articles  mentioned  in  the  other  two 
subdivisions  of  the  ordinance.  Park  City  v. 
Daniels    (Utah)    1918E-107.  (Annotated) 

2.  A  city  ordinance,  requiring  a  license  fee 
for  peddling  or  selling  certain  pro%'isions, 
articles  of  general  merchandise,  and  articles 
for  household  use.  violates  Comp.  Laws  1907, 
§  206,  subd.  87,  requiring  all  such  fees  to  be 
uniform  in  respect  to  the  class  upon  which 
they  are  imposed,  in  discriminating  in  favor 
of  the  local  merchants  of  the  city  engaged 
in  selling  the  same  articles.  Park  Citv  v. 
Daniels    (Utah)    1918E-107.  (Annotated) 

3.  While  city  authorities  may  impose  li- 
cense and  occupation  taxes,  and  may  make 
reasonable  classifications  for  siich  purpose, 
such  fees  and  taxes  must,  under  the  express 
terms  of  Comp.  Laws  1907,  §  206,  subd.  87, 
be    imiform    in    respect    to    the    class,  upon 


112 


AKAL  CAS.  DIGEST  (1918C-1918E). 


which  they  are  imposed.  Park  City  v.  Dan- 
iels (Utah)  ini8E-107.  (Annotated) 
4.  A  city  ordinance,  requiring  a  $100  li- 
cense fee  for  peddling  "wares  and  merchan- 
dise of  a  general  character''  and  a  fee  of  $7 
a  quarter  for  peddling  "'small  articles  for 
household  use,"  is  discriminatory  because  of 
the  uncertainty  of  its  terms,  since  the  same 
articles  might,  he  constrtied  to  be  included 
within  the  ordinance  by  one  court  or  jury 
and  to  be  excluded  by  another.  Park  City 
V.  Daniels  (Utah)  1918E-107.       (Annotated) 


HEALTH  INSURANCE. 

See  Insukancb,  48-53. 

HEARSAY  EVIDENCE. 

See  Evidence,  9. 

HEIRS. 

See  Descent  and  Distbibtjtion  ;  Wills. 

Action  to  recover  realty,  see  Executors  and 
Administrators,  11. 

Money  in  hands  of  heirs  as  assets,  see  Execu- 
tors AND  Administrators,  12. 

HIGHAVAYS. 

See  Streets  and  Highways. 

HOLIDAYS. 

S^  Sundays  and  Holidays. 

HOMICIDE. 

1.  Manslaughter,  1 12. 

2.  Indictment  or  Information,  112. 

3.  Evidence: 

a.  Admissibility,    112. 

b.  Weight    and    sufficiency    of    evidence, 

112. 

4.  Province  of  Court  and  Jury,  113. 
6.  Instructions,  113. 

See  Dyinr  Declarations. 

Admissibility  of  declaration  of  third  person 
injured  in  altercation,  see  Admissions 
AND  Declarations,  20. 

Admissibility  of  declaration  of  victim  of 
homicide,  see  Admissions  and  Declara- 
tions, 18,  19. 

Assault  with  intent  to  kill,  see  Assault, 
1,  2. 

By  negligent  operation  of  automobile,  see 
Automobiles.  26. 

Jurisdiction  of  juvenile  court  of  infant  al- 
leged to  have  committed  homicide,  seo 
Infants.  9,  12. 

1.   Manslaughter. 
1.  Manslaughter  is  the  unlawful  killing  of 


another  without  malice,  either  upon  a  sud- 
den quarrel  or  unintentionally,  while  the 
slayer  is  in  the  commission  of  an  act  made 
unlawful  by  a  valid  statute.  State  v.  Schaef- 
fer    (Ohio)    1918E-1137. 

2.  In  iin  indictment  for  manslaughter  such- 
unlawful  act  need  not  be  pleaded  in  the  in- 
dictment. The  short  form  of  indictment  pro- 
vided in  section  13.')83,  (General  Code,  is  not 
in  conflict  witii  the  constitutional  guaranty 
that  the  accused  shall  be  advised  of  "the 
nature  and  cause  of  the  accusation  against 
him."    State  v.  Schaefler  (Ohio)  1918E-1137. 

2.  Indictment  or  Information. 

3.  Where  an  indictment  for  manslaughter 
charges  the  defendant  with  having  "unlaw- 
fully killed  Adelbert  Chaky,  .sometimes 
otherwise  known  as  Bulej'  Csaki,"'  and  there 
is  no  evidence  tending  to  prove  the  alias, 
or  that  both  names  were  the  names  of  the 
same  person,  such  failure  is  not  a  fatal  vari- 
ance, because  it  is  not  prejudicial  to  the  mer- 
its of  the  case  and  the  substantial  rights  of 
the  defendant.  State  v.  Schaffer  (Ohio). 
1918E-1137. 

3.  Evidence. 

a.  Admissibility. 

4.  Identity  of  deceased. — Under  Pen.  Code 
1895,  art.  fi.54.  requiring  the  identification  of 
the  body  of  deceased  as  that  of  the  person 
charged  to  have  been  killed,  the  state  is 
boVind  to  prove  the  corpus  delicti,  and  the 
amount  of  proof  of  identification  cannot  be 
complained  of.  McCue  v.  State  (Tex.) 
1918C-674. 

5.  Under  this  statute,  circumstantial  evi- 
dence is  admissible  to  prove  identity.  Mc- 
Cue v.  State   (Tex.)   1918C-674. 

6.  Letters,  memoranda,  etc. — In  a  prosecu- 
tion for  homicide,  where  the  body  is  not 
clearly  identified  by  any  witness,  letters, 
memoranda,  etc.,  found  in  a  grip  near  the 
body  and  in  the  clothes,  are  admissil)le  to 
prove  identity.  McCue  v.  State  (Tex.) 
1918C-674.  (Annotated) 

7.  But  such  memoranda,  etc..  are  not  ad- 
missible to  show  that  deceased  had  in  his 
possession  a  considerable  sum  of  m.oney. 
:MeCue  v.  State   (Tex.)   1918C-674. 

8.  Possession  of  money  by  accused. — 
Where  it  is  shown  that  immediately  before 
the  killing  accused  was  short  of  money  and 
pawnetl  his  watch,  evidence  that  after  the 
killing  accused  was  freely  spending  money  in 
saloons  and  immoral  resorts  is  admissible, 
where  it  appears  that  deceased,  when  killed, 
had  in  his  possession  a  considerable  sum  of 
money.     McCue  v.  State  (Tex.)   1918C-674. 

b.  Weight   and    Sufficiency   of   Evidence. 

9.  The  evidence  is  held  to  sustain  a  con- 
viction for  murder  against  a  ))loa  of  self- 
defense.     Holland  v.  State  (Ark.)   ]ni8C-.')78. 

10.  In  a  prosecution  for  nnnder,  the  evi- 
dence reviewed  and  held  sufficient  to  sustain 
the    conviction    with:    imprisonment    for    life-. 


HOSPITALS  A>;D  asylums— husband  Al^T)  WIFE.       113 


as  the  punishment.     Poling  v.  State   (Okla.) 
iyi8E-663. 

11.  Corroboration  of  accomplice. — Testi- 
mony that  a  knife  found  by  the  body  of  de- 
ceased, who  had  been  stabbed  and  beaten 
to  death,  belonged  to  accused,  is  sufficient 
corroboration  of  the  testimony  of  a  self-con- 
fessed accomplice  to  justify  a  conviction  up- 
on the  accomplice's  testimony.  McCue  v. 
State   (Tex.)   1918C-674. 

4.  Province  of  Court  and  Jury. 

12.  Alibi. — In  a  prosecution  for  homicide, 
where  the  evidence  on  alibi  is  conflicting,  the 
question  is  for  the  jury.  McCue  v.  State 
(Tex.)    1918C-674. 

5.  Instructions. 

13.  Reasonableness  of  belief  in  danger. — 
An  instruction  that  the  accused  was  justi- 
fied in  shooting  if  he  believed,  "acting  as  a 
reasonable  person,''  he  was  in  danger,  etc., 
is  not  reversible  error  because  of  the  quoted 
words,  where  the  accused  was  not  shown  to 
have  been  of  inferior  mental  capacity.  Hol- 
land V.  State   (Ark.)   1918C-578. 

14.  Act  of  accused  as  proximate  cause  of 
death. — The  unlawful  act  relied  upon  as  the 
predicate  for  manslaughter  must  be  the 
proximate  cause  of  death.  If  death  resulted 
irom  any  other  cause,  or  there  be  a  reason- 
able doubt  as  to  the  unlawful  act  being  the 
proximate  cause  of  death,  the  jury  should 
acquit.  But  where, .  upon  the  undisputed 
facts,  it  clearly  and  conclusively  appears  to 
a  moral  certainty  that  the  unlawful  act 
complained  of  was  the  proximate  cause  of 
deatli.  a  failure  to  so  charge,  especially 
where  there  was  no  request  to  so  charge,  is 
not  reversible  error.  State  v.  Shaeffer  (Ohio) 
1918E-1137. 

15.  Submission  of  included  offenses. — 
Where  all  the  evidence  clearly  and  conclu- 
sively shows  that  the  unlawful  act  relied 
upon  by  the  state  directly  caused  the  killing, 
and  there  is  no  evidence  to  the  contrary,  the 
failure  of  the  court  to  charge  on  assault, 
or  assault  and  batterv,  is  not  error.  (Marts 
V.  The  State,  26  Ohio  St.  162,  and  Dresback 
V.  The  State,  38  Ohio  St.  365,  approved  and 
followed.  So  far  as  the  case  of  Lindley  v. 
The  State,  69  Ohio  St.  215,  is  in  conflict 
with  the  two  foregoing  cases,  said  Lindley 
case  is  disapproved.)  State  v.  Schaeffer 
(Ohio)    1918E-1137. 


HOSPITALS    AND    ASYLUMS. 

Hospital  as  charity,  see  Charities,  1. 
Liability  of  charitable   institution   operating 

hospital  for  injury  to  patient,  see  Chabi- 

TIES,  4. 


HOTELS. 

See  Inns  and  Innkeepers. 

Ann.  Cas.  Dig.  1918C-E.— 8. 


HUMILLATION. 

From  disfigurement  as  element  of  damage  in 
action  for  personal  injury,  see  Dam- 
ages, 2. 


HUSBAND  AND  -WITH. 

1.  Disabilities  of  Married  Women,  113. 

2.  Antenuptial  Contracts,  114. 

3.  Wife's  Separate  Property,   114. 

4.  Rights  and  Liabilities  Inter  Se,  114. 

5.  Community  Property,  115. 

6.  Rights  against  Third  Persons,   116. 

7.  Liability  to  Third  Persons,    116. 

See  Alimony  and  Suit  Money;  Divorce; 
Marriage. 

As  competent  witnesses  for  or  against  each, 
other,  see  Witnesses,  3-5. 

Attachment  on  community  property,  see  At- 
tachment, 1,  2. 

Conveyance  to  wife  as  fraudulent,  see  Fraud- 
ulent Sales  and  Convey'ances,  2. 

Curing  defective  acknowledgment  in  convey- 
ance from  wife  to  husband,  see  Acknowl- 
edgments, 6. 

Effect  of  defective  acknowledgment  in  deed 
from  wife,  see  Acknowledgments,  1. 

Estate  by  entirety  as  subject  to  execution, 
see  Executions,  1. 

Estoppel  of  wife  to  deny  validity  of  contract 
of  employment  by  husband  of  attorney, 
see  Attorneys,  2. 

Lien  of  judgment  on  community  property, , 
see  Judgments,  6. 

Purchase  by  wife  in  name  of  husband  as  re- 
sulting trust,  see  Trusts  and  Trus- 
tees, 4. 

Right  of  wife  to  recover  for  money  lost  by 
husband  in  purchase  of  futures,  see 
Gaming,  2,  3,  5,  6. 

1,  Disabilities    of    Married    Women. 

1.  Contract  to  convey — Acknowledgment. — 
A  married  woman  can  bind  her  land  for 
sale  only  by  a  writing  which  she  duly  ac- 
knowledges as  the  statute  requires.  Weeklv 
V.  Wagner   (W.  Va.)    1918E-630. 

2.  Where  a  married  woman  by  a  written 
option  executed  only  by  her  signature  and 
seal,  agrees  to  convey  her  land  to  another 
in  case  he  elects  to  take  the  same  w'ithin  a 
stipulated  time,  her  acknowledgment  of  the 
same  made  before  a  notary  after  the  time 
fixed  for  such  election  has  expired,  will  not, 
without  more,  revive  and  legalize  the  agree- 
ment and  an  election  made  under  it  within 
the  time.  Weeklv  v.  Wagner  (W.  Va.) 
1918E-630.  "  (Annotated) 

3.  Deeds — Sufficiency  of  joinder  of  hus- 
band.— The  deed  of  a  married  woman,  signed 
and  acknowledged  by  herself  and  husband, 
although  the  latter  is  not  named  as  a  grant- 
or, evidences  the  husband's  joinder  in  the 
deed,  and  passes  the  wife's  title  to  her  sepa- 
rate real  estate.  Linn  v.  Collins  (W.  Va.) 
1918C-86. 


114 


ANK  CAS.  DIGEST  (1018C-1918E). 


8.  Antenuptial  Contracts. 

4.  Effect  on  marital  rights. — The  marital 
rights  of  liuaband  and  wife  will  not  be 
taken  away  bj'  an  antenuptial  agreement, 
unless  the  intention  to  do  so  is  clearly  ap- 
parent. Baughman  v.  Baughman  (111.) 
1918E-895. 

5.  Construction. — An  antenuptial  marriage 
settlement  examined,  and  held  binding  only 
if  the  husband  desired  to  dispose  of  his  pro])- 
erty  otherwise  than  as  under  the  statute  of 
descents.  Baughman  v.  Baughman  (HI.) 
1918E-895. 

6.  An  antenuptial  marriage  contract  exam- 
ined, and  held  executory  and  not  binding  up- 
on the  parties  as  to  the  rights  of  their  own 
child;  she  being  a  minor  at  her  father's 
death.  Baughman  v.  Baughman  (111.)  1918E- 
895. 

7.  Marriage  settlements. — The  law  favors 
marriage  settlements  and  seeks  to  uphold 
them,  and  will,  if  necessary,  strain  to  the 
uttermost  the  interpretation  of  equivocal 
words  and  conduct  to  hold  the  parties  there- 
to. De  Cicco  V.  Schweizer  (N.  Y.)  19180- 
816. 

3.  Wife's  Separate  Property. 

8.  Evidence  showing  purchase  with  sepa- 
rate funds. — In  a  suit  by  a  wife  to  quiet 
title  to  real  estate,  sold  on  execution  against 
her  husband,  the  evidence  is  held  to  be  suffi- 
cient to  support  the  finding  that  the  prop- 
erty was  purchased  with  the  separate  funds 
of  the  wife,  and  not  with  the  proceeds  of  a 
sale  of  community  property.  McKeehan  v. 
VoUmer-Clearwater  Co.   (Ida.)   1918E-1197. 

9.  Where  there  is  a  conflict  of  evidence  as 
to  whether  property  claimed  as  separate 
property  of  the  wife  was  purchased  out  of 
the  proceeds  of  the  sale  of  community  prop- 
erty, and  the  trial  court  finds  that  it  was 
not  so  purchased,  the  finding  will  not  be 
disturbed.  McKeelian  v.  VoUmer-Clearwater 
Co.    (Ida.)   1918E-1197. 

10.  Where  defendant  father  made  a  valid 
agreement  with  his  wife  that  property  in- 
herited by  her  and  which  she  acquired  should 
remain  her  separate  property,  the  evidence 
is  held  to  be  sufficient  to  justify  a  finding 
that  property  purchased  for  her  by  her  son 
with  her  money  and  with  money  which  the 
son  owed  her  for  rent,  etc.,  was  her  separate 
property,  and  that  part  of  the  purchase  })rice 
paid  by  the  son  with  his  own  money  should 
be  credited  upon  his  debt  to  her.  Union 
Securities  Co.  v.  .Smith  (Wash.)   1918E-710. 

11.  Earnings  of  wife.— Section  1087,  C.  L. 
1884,  and  section  1.509.  C.  L.  1897,  which  de- 
fined  "separate    property"   of   the    wife   and 
further    provided    that,    "and    any    . 
woman  may,  during  coverture,  receive,  take, 
hold,   use,  and   enjoy   property   of   any   and 
every  description,   and  all  avails  of  her  in- 
dustry, free  from  any  liability   of  her  hus- 
band on  account  of  his  debts,  as  fully  as  if  ] 
she  were  unmarried"  construed.     Held,  that   1 
the  clause  quoted  simply  exempted  the  earn- 
ings   of    the    wife    from    liability    for    the  / 
debts  of  the  husband,  and  did  not  make  the 


wife's  earnings  her  own   separate   property. 
Albright  v.  Albright    (X.  Mex.)    1918E-542. 

12.  Postnuptial  agreement.— In  an  action 
to  set  aside  as  fraudulent  certain  deeds  and 
a  mortgage  of  real  estate,  and  to  subject  the 
property  to  tlie  lien  of  a  judgment,  the  evi- 
dence is  held  to  establish  a  valid  oral  post- 
nuptial agreement  between  husband  and  wife 
that  property  inherited  by  the  wife  from 
her  father  and  whatever  she  acquired  should 
be  hers,  and  upon  her  death  go  to  her  chil- 
dren, and  that  whatever  the  husband  ac- 
quired and  his  personal  earnings  should  be 
his,  and  upon  his  death  go  to  his  two  chil- 
dren by  a  former  marriage,  which  was  con- 
tinuously acted  upon  by  the  parties  transact- 
ing their  business  separately.  Union  Securi- 
ties Co.  V.  Smith  (Wash.)   i918E-710. 

4.  Rights  and  Liabilities  Inter  Se. 

13.  Validity  of  contracts. — Agreements 
made  between  husband  and  wife,  looking  to 
the  adjustment  of  their  property-  rights, 
standing  alone,  are  not  invalid.  Hood  v. 
Roleson   (Ark.)   1918E-900. 

14.  Contract  facilitating  divorce. — A  con- 
tract between  husband  and  wife,  whereby 
part  of  the  consideration  for  his  execution 
of  a  note  was  that  the  wife  should  not  file 
an  answer  to  his  cross -complaint  for  divorce 
and  should  make  no  defense  to  the  action, 
is  void  as  against  public  policy,  notwith- 
standing the  existence  of  legal  grounds  for 
divorce,  since  an  agreement  intended  to  fa- 
cilitate procuring  a  divorce  is  against  pub- 
lic policj^,  anv  promises  founded  thereon  be- 
ing void.  Hood  V.  Roleson  (Ark.)   11)lSE-900. 

(Annotated) 

15.  Formal  requisites  of  deed. — A  deed  to 
lands  from  a  wife  to  her  husband  is  a  "con- 
tract" within  Revisal  1905,  §  2107.  providing 
that  no  contract  between  a  husband  and  wife 
during  coverture  shall  be  valid  as  to  any 
part  of  the  wife's  realty  for  a  longer  time 
than  three  years,  unless  it  shall  be  in  writ- 
ing and  duly  proved  as  required  for  convey- 
ances of  land,  and  unless,  upon  the  exami- 
nation of  the  wife  apart  from  her  husband, 
as  required  in  probate  of  deeds  of  femes 
covert,  it  shall  appear  to  the  satisfaction  of 
the  officer  that  the  wife  freely  executed  such 
contract  and  freely  consented  thereto  at  the 
time  of  her  separate  examination,  and  that 
the  same  is  not  luireasonable  and  injurious 
to  her,  since  until  delivery  a  deed  is  an 
executory  contract,  becoming  executed  iipon 
delivery.'  Butler  v.  Butler  (X.  C.)  1918E- 
638. 

16.  Revisal  1905.  §  2107.  providing  that  no 
contract  between  a  husband  and  wife  made 
during  coverture  shall  be  valid  to  affect  or 
charge  any  part  of  the  real  estate  of  the 
wife  for  a  longer  time  than  three  yenrs.  un- 
less in  writing  and  duly  proved  as  required 
for  conveyances  of  land  and  unless  upon  the 
examination  of  the  wife,  separate  from  her 
husband,  it  shall  appear  to  the  satisfaction 
of  the  officer  that   the  wife   freely  executed 

^the  contract  and  freely  consented  thereto 
at  the  time  of  her  separate  examination,  and 
ithat    the    same    is   not    unreasonable   or   in- 


ICE  PLANT— IMPROVEMENTS. 


115 


jiirious  to  her,  is  a  constitutional  exercise 
of  legislative  power.  Butler  v.  Butler  (N.  C.) 
10T8E-638. 

17.  Action  against  husband  for  wrongful 
death. — Under  Acts  1915,  p.  684,  removing 
tlie  disabilities  of  married  women  and  provid- 
ing that  a  married  woman  in  law  and  equity 
shall  enjoy  all  rights  and  be  subjected  to  all 
laws  as  though  she  were  a  feme  sole,  a  mar- 
ried woman  may  maintain  an  action  against 
her  husband  either  for  contract  or  tort,  and 
her  representatives  may  sue  her  husband  for 
wrongful  death  under  Kirby's  Dig.  §  6289. 
Fitzpatrick   v.   Owens    (Ark.)    1918C-772. 

5.  Community  Property. 

18.  Purchase  by  husband  with  wife's  guar- 
anty.— Where  a  husband  purchases  stock 
with  money  earned  by  himself,  and  his  wife 
is  not  concerned  in  the  purchase,  and  signs 
a  bond  as  stockholder,  guaranteeing  the  in- 
debtedness of  the  company  to  a  bank,  there 
being  a  valid  agreement  between  husband 
and  wife  that  liis  earnings  should  be  his 
separate  property,  his  act  in  signing  the  bond 
does  not  create  a  community  obligation. 
L'nion  Securities  Co.  v.  Smith  (Wash.) 
1918E-710. 

19.  Evidence. — The  evidence  is  held  to  be 
sufficient  to  support  a  finding  that  an  un- 
divided one-half  of  land  purchased  by  the 
deiendaiits  father  and  son,  title  to  which  wa3 
taken. in  the  name  of  defendant  father's  wife, 
was  the  community  property  of  defendant 
father  and  his  wife.  Union  Securities  Co.  v. 
Smith  (Wash.)  1918E-710. 

20.  In  a  suit  instituted  by  a  daughter 
against  her  father  for  the  partition  of  the 
real  estate  owned  by  her  mother  at  the  time 
of  her  death,  she  having  died  intestate,  the 
unconoborated  evidence  of  the  father  is  suffi- 
cient to  sustain  a  finding  by  the  trial  court 
that  the  real  estate,  standing  in  the  name  of 
the  wife  at  the  time  of  her  death,  was  com- 
munity property.  Section  2175,  Code  1915, 
has  no  application  to  a  suit  between  heirs 
for  the  partition  of  the  real  estate  of  their 
ancestor.  Albright  v.  Albright  (N.  Mex.) 
1918E-542. 

6.  Rights  against  Third  Persons. 

21.  Right  of  wife  to  sue  for  loss  of  con- 
sortium.— A  wife  has  no  right  of  action  at 
common  law  against  a  person  for  the  loss 
of  the  consortium  of  her  husband  caused  by 
personal  injuries  sustained  by  him  through 
the  negligence  of  such  person.  Smith  v. 
Nicholas  Bldg.  Co.    (Ohio)    1918D-206. 

(Annotated) 

7.  Liability  to  Third  Persons, 

22.  Contract  by  husband.— Where  a  hus- 
band contracts  to  pay  a  broker  a  commission 
for  an  exchange  of  property,  a  judgment, 
broad  enough  to  be  considered  as  a  personal 
judgment  against  the  wife  individually,  is 
erroneous.  Godefrov  t.  Hupp  (Wash.) 
191SE-494. 

23.  Estoppel  to  deny  husband's  title. — A 
married  woman  purchased  real  property  with 


her  own  funds,  allowing  her  husband  to  act 
as  her  agent  in  the  transaction,  and  the  title 
was  taken  in  the  name  of  her  husband  con- 
trary to  her  instructions.  The  wife,  being 
unable  to  read,  believed  her  husband's  state- 
ment that  the  title  was  in  her  name,  and 
nothing  happened  to  put  her  on  inquiry  or 
arouse  her  suspicions  to  the  contrary.  It  ia 
held  that  she  was  not  estopped  to  claim 
title  as  against  an  execution  creditor  of  her 
husband.  McKeehan  v.  VoUmer-Clearwater 
Co.   (Ida.)    191SE-1197.  (Annotated) 


ICE  PLANT. 

Power   of    city   to   operate,   see   Mukicipal 

COEPOEATIONS,  11. 


IDENTITY. 

Identification  of  devisee,  see  Wills,  29-34. 
Proving  identity  of  deceased  in  prosecution 
for  homicide,  see  Homicide,  4-7^* 


II.LEGAI.  CONTRACTS. 

See  CoNTBACTS,  12-20. 

Validity  of  agreement  to  divide  fees  of  pub- 
lic officer,  see  Public  Officers,  12. 


UXNESS. 

Health  insurance,  see  Insuhanoe,  48-53. 

IMPENDING    DEATH. 

Admissibility  of  dying  declarations  as  aflFect- 
ed  by  impending  death,  see  Dyino  Dec- 
larations, 2,  3. 

IMPLIED  CONTRACTS. 

Implied  agreement  for  compensation  for  serv- 
ices rendered  to  parent,  see.  Parent 
AND  Child,  3. 

Of  consignee  to  pay  freight,  see  Cabbiebs  ot| 
Goods,  9. 

To  pay  broker's  commission,  see  Bbokebs, 
4,  5. 

IMPLIED   TRUST. 

See  Trusts  and  Tbustees,  1-13. 

IMPROVEMENTS. 

Apportionment  as  between  life  tenant  and 
remainderman  of  assessment  for  public 
improvements,  see  Life  Estates,  23-25. 

Cost  of  improvements  as  chargeable  to  prin- 
cipal or  income  of  trust  estate,  see 
Trusts  and  Trustees,  27,  30,  31. 


116 


ANN.  CAS.  DIGEST   (11)18C-1918E). 


Liability  of  grantee  of  lessor  under  latter's 
covenant  to  pay  for  improvements,  see 
Landlord  and  Tenant,  8. 

Reimbursement  of  life  tenant  for  improve- 
ments, see  Life  Estates,  19. 

Taxation  for  public  improvements,  see  Taxa- 
tion, 44-51. 


IMPUTED    NEGLIGENCE. 

Imputation  of  negligence  to  person  riding  in 
automobile,  see  Automobiles,  24. 


INCLUDED  OFFENSES. 

Inclusion   of   lesser   oflFenses   in   information, 
see  Indictments  and  Infobmations,  9. 


INCOME. 

Gift  of  income,  see  Gifts,  1. 

INCOME  TAXES. 

See  Taxation,  59. 

INCONSISTENT  POSITION. 

In  litigation,  see  Estoppel,  2. 

INCUMBRANCES. 

Covenant  against,  see  Deeds,  11,  12. 

INDEMNITY. 

See  Guabantt. 

Indemnity  insurance,  see  Insubaivce,  23-36, 
39-44. 

Right  of  city  to  indemnity  from  abutting 
owner  against  judjjment  recovered  for 
injuries  to  pedestrian  resulting  from 
icy  condition  of  sidewalk,  see  Stbeets 
AND  Highways,  16,  17. 

1.  Construction. — ^Where  an  electric  com- 
pany constructing  a  line  close  to  that  of 
another  company  agrees  to  save  the  latter 
harmless  from  all  damage  by  reason  of  the 
negligence  of  the  first  mentioned  company 
"or  otherwise"  the  indemnitee  is  not  entitled 
to  be  indemnified  against  a  liability  result- 
ing in  part  from  its  own  negligence.  Toronto 
V.  Lambert   (Can.)   1918D-57. 

INDEPENDENT  CONTRACTORS. 

1.  Who  Are,  110. 

2.  Liability   of   Owner,  117. 

See  CONTBACTS;   MaSTEE  AND  SeBVANT. 


Company  furnishing  fireworks  to  committee 
having  charge  of  Fourth  of  July  cele- 
bration as  independent  contractor,  see 
Theaters  and  Axiuskment.s,  8. 

1.  Who  Are. 

1.  An  "independent  contractor"  is  one  who, 
exercising  an  independent  employment,  con- 
tracts to  do  a  piece  of  work  according  to  his 
own  methods,  without  being  subject  to  the 
control  of  his  employer  except  as  to  the  re- 
sult of  the  work.  Bodwell  v.  Webster  (Neb.) 
1918C-ti24.  (Annotated) 

2.  Tests  of  relation. — ^\Vhile  the  existence 
or  the  absence  of  the  right  of  the  employer 
to  control  the  work  is  a  usual  test  to  deter- 
mine whetlier  the  workman  is  a  servant  or 
an  independent  contractor,  the  right  of  the 
employer  to  discharge  him,  the  absence  of 
an  independent  occupation,  and  the  mode 
of  compensating  him  and  his  subordinates, 
may  be  factors  indicating  the  true  relation. 
Bodwell   V.   Webster    (Xeb.)    1918C-624. 

(Annotated) 

3.  City  garbage  collector. — One  who  per- 
forms services  for  a  city  in  the  matter  of 
removing  garbage  under  a  written  contract 
which  contains  a  provision  that  he  is  to  fur- 
nish teams  and  men  or  such  number  tlieveof 
as  in  the  judgment  of  said  city  may  be  neces- 
sary, and  that  the  entire  work  is  to  be  done 
in  a  good  and  substantial  manner,  with  the 
approval  and  acceptance  of  the  city,  and  un- 
der the  supervision  and  direction  of  the  com- 
missioner of  health,  and  that  his  teams  and 
equipment  shall  be  acceptable  and  satisfac- 
tory to  said  health  commissioner,  is  held  to 
be  an  independent  contractor,  and  not  a 
servant  of  said  city.  Montain  v.  Fargo  (X. 
D.)   1918D-826. 

4.  Person  hauling  logs. — Under  Workmen's 
Compensation  Law  (Pub.  Acts  Ex.  Sess.  1912^ 
No.  10),  pt.  1,  §  5,  providing  that  every  per- 
son or  corporation  who  has  any  person  in 
service  under  any  contract  of  hire,  shall  be 
an  employer,  a  person  who  hauls  logs  for 
a  lumber  company  over  its  road  under  an 
oral  agieement,  for  no  definite  period,  to 
use  his  own  team,  which  he  keeps  and  cares 
for,  with  the  company's  sleighs,  in  hauling 
logs  from  a  skidwaV  to  a  mill,  at  $2  per 
thousand,  and  who  has  charge  of  his  team 
on  the  road  and  who  has  nothing  to  do  with 
the  unloading,  is  an  "'employee,"  since  tlie 
company  lias  such  control  over  his  work  as 
to  make  it  inconsistent  to  say  that  he  is  an 
"independent  contractor;"  the  test  of  rela- 
tionship being  the  right  to  control  the  work, 
and  not  the  fact  of  actual  interference  with 
the  work.  Tuttle  v.  Emburv-Martin  Lumber 
Co.    (Mich.)    1918C-664.        '         (Annotated) 

5.  In  such  proceeding,  where  there  was  no 
evidence  that  the  employee  knew  that  the 
company's  foreman  could  prevent  a  man 
working  by  the  thousand  from  taking  a  load 
if  he  so  desired,  evidence  of  any  such  cus- 
tom is  inadmissible,  since  a  custom  is  ad- 
missible only  on  the  ground  that  the  par- 
ties are  both  cognizant  of  it,  and  must  be 
presumed    to    have    made    their    engagement 


INDEX— INDICTMENTS  AND  INFORMATIONS. 


11' 


with  reference  to  it.    Tuttle  v.  Embury-Mar- 
tin Lumber  Co.    (Mich.)    1918C-664. 

(Annotated) 

6.  Evidence. — In  an  action  by  a  servant  for 
injuries,  defense  being  he  was  not  an  em- 
ployee, error  in  permitting  him  to  testify  as 
to  his  hiring  for  defendants  by  one  not  shown 
to  have  authority,  from  defendants,  is  held 
not  to  be  reversible,  in  view  of  the  nature 
of  plaintiff's  employment  and  the  insuring 
of  plaintiff  and  others  as  defendants'  em- 
ployees. Sempier  v.  Goemann  (Wis.)  1918C- 
670. 

7.  Question  for  jury. — Wliere  the  rela- 
tion between  the  owner  of  a  building  and  a 
workman  engaged  to  repair  it  is  not  evi- 
denced wholly  by  a  written  instrument,  but 
is  affected  by  extrinsic  facts  and  circum- 
stances, from  which  different  deductions  may 
reasonably  be  drawn,  whether  the  workman 
was  an  independent  contractor  is  a  question 
for  the  jury.  Bodwell  v.  Webster  (Xeb.) 
1018C-624.  (Annotated) 

8.  In  an  action  by  a  servant  for  injuries, 
whether  one  in  charge  of  the  work  of  piling 
logs  in  which  defendant  was  engaged  when 
injured  and  who  was  paid  a  certain  sum 
per  thousand  while  in  charge  of  such  work 
was  an  independent  contractor,  is  held  to  be 
a  question  for  the  jury.  Sempier  v.  Gol- 
mann   (Wis.)    1918C-670.  (Annotated) 

2.  Liability  of  Owner. 

9.  Where  work  is  done  by  an  independent 
contractor,  no  liability  exists  against  the 
other  party  to  the  contract  for  personal  in- 
jtiries  to  the  negligent  contractor's  employee. 
Teeters  v.  Des  Moines  (La.)  1918C-659. 

10.  While  an  employer  is  not  responsible 
for  the  negligence  of  an  independent  con- 
tractor who  hires  his  own  agents  and  em- 
ployees and  does  all  the  work  free  from  any 
control  or  right  of  control  as  to  details,  yet. 
where  the  contract  calls  for  the  doing  of 
things  which,  unless  precautions  are  taken, 
are  liable  to  do  injury  to  others,  it  is  the 
employer's  duty  to  see  that  such  precautions 
are  taken,  and  he  cannot  escape  such  duty 
by  turning  over  the  whole  matter  to  the 
contractor.  Sroka  v.  Hallidav  (R.  L)  1918D- 
961. 

11.  The  mere  fact  of  the  nominal  employ- 
ment of  a  workman  as  an  independent  con- 
tractor will  not  relieve  the  master  of  lia- 
bility for  his  torts,  where  he  is  in  fact  em- 
ployed as  a  servant.  Bodwell  v.  Webster 
(Xeb.)    1918C-624.  (Annotated) 

12.  County  paving  city  street. — Code. 
§  1530,  provided  that  the  board  of  supervisors 
of  each  county  should  levy  a  tax  for  the 
county  road  fund :  the  portions  collected 
within  cities  or  incorporated  towns  to  be 
expended  upon  the  streets  of  such  cities  or 
towns,  or  on  roads  adjacent  thereto,  'un- 
der the  direction  of  the  city  or  town  council." 
A  citj"  council  directed  the  board  of  public 
works  to  grade  a  city  street  and  expend  mon- 
ey from  the  county  road  fund  for  the  work. 
The  county  board  of  supervisors  undertook 
to  do  the  work  provided  by  the  resolution, 
and  the  plaintiff  was  hired^by  them  to  work 


on  the  grading  job.  He  was  ordered  by  the 
foreman,  an  employee  of  the  county,  to  drive 
on  the  fill  and  empty  his  wagon.  The  fill 
gave  way  and  plaintiff  was  injured.  He 
sued  the  city,  claiming  that  the  county  was 
its  agent  in  the  work.  It  is  held  that  the 
city  had  no  supervision  of  the  work  sufficient 
to  establish  agency  and  make  the  plaintiff  its 
servant,  but  that  the  county  was  an  inde- 
pendent contractor,  and  therefore  plaintiff" 
could  not  recover.  Teeters  v.  Des  Moines 
(la.)    1918C-659.  ■   (Annotated) 

13.  Under  Code,  §  1530,  providing  that  the 
expenditures  of  money  for  road  work  on 
streets  of  cities  or  towns  or  on  roads 
adjacent  thereto  shall  be  done  by  the 
board  of  supervisors,  "under  direction  of  the 
city  or  town  council,"  it  is  immaterial  on 
the  question  of  the  citj''s  liability  for  per- 
sonal injuries  to  one  employed  on  the  work 
when  done  by  the  county  whether  the  road 
is  within  or  without  the  city.  Teeters  v.  Des 
Moines    (la.)    1918C-659.  (Annotated) 


INDEX. 

Reliance  on  index  of  registry  of  deeds  in 
searching  title,  see  Abstract  of  Title,  2, 
3. 


INDIANS. 

1.  Effect  of  state  law. — Act  Cong.  April 
28,  1904,  c.  1824,  33  Stat.  573,  providing  that 
"all  the  laws  of  Arkansas  heretofore  put  in 
force  in  the  Indian  Territory  are  hereby  con- 
tinued and  extended  in  their  operation,  so  as 
to  embrace  all  persons  and  estates  in  said 
territory,  whether  Indian,  freedman,  or  other- 
wise," was  not  intended  to  supplant  or  super- 
sede any  special  enactment  of  Congress  with 
regard  to  Indians,  but  the  purpose  and  effect 
thereof  were  to  abolish  all  general  existing 
tribal  laws  of  the  Seminoles,  and  to  substi- 
tute therefor  the  laws  in  force  and  which 
had  for  years  governed  all  persons  in  Indian 
Territory*,  save  Indians  in  their  intercourse 
with  one  another.  Palmer  v.  Cully  (Okla.) 
1918E-375. 

2.  Upon  the  erection  of  the  state,  members 
of  the  tribes  became  citizens  of  Oklahoma, 
subject  to  the  general  state  laws  relative 
to  marriage  and  divorce,  since  which  time  the 
validity  of  their  marriage  contracts  and  all 
rights  consequent  thereon  have  been  depend- 
ent upon  such  laws.  Palmer  v.  Cully  (Okla.) 
1918E-375.  (Annotated). 


VVDICTMENTS  AND  INFORMATIONS. 

1.  Charging  Offense,  118. 

2.  Amendment,  118. 

3.  Bill  of  Particulars,  118. 

■See  Embezzlement.  1-3;  Homicide.  3;  Rape, 

1-3. 
In    prosecution    for    assault   with    intent   to 

kill,  see  Assault,  1. 


118 


A:S"^^.CA3.  digest  (1918C-1918E). 


In   prosecution    under    anti-tipping   act,    see 

Tips,  1. 
Obtaining    money    by    means    of    confidence 

game,  see  False  Pbetexses,  1,  2. 

1.  Charging  Offense. 

1.  Validity  of  statute  prescribing  fonn. — 
Code  Cr.  Proc.  §  229,  subd.  6,  as  amended 
by  laws  1913,  c.  242,  declaring  that  an  in- 
formation is  sufficient  where  it  can  be  under- 
stood therefrom  that  the  offense  is  designated 
in  such  a  manner  as  to  enable  a  person  of 
common  imderstanding  to  know  what  is  in- 
tended, requires  an  information  which,  as 
required  by  Const,  art.  6,  §  7,  will  give  ac- 
cused the  natui"e  and  cause  of  the  accusation 
against  him,  and  is  valid.  State  v.  Morse, 
(S.  D.)   1918C-570.  (Annotated) 

2.  Gen  Laws  1909,  c.  345,  §  18,  as  to  neces- 
sary allegations  in  indictment  for  embezzle- 
ment and  the  indictments  drawn  thereunder 
do  not  violate  Const,  art.  1,  §  10  providing 
that  an  accused  shall  not  "be  deprived  of  life, 
liberty  or  property,  unless  by  .  .  .  the 
law  of  the  land,"  nor  that  portion  of  Const. 
U.  S.  Amend.  14,  §  1,  providing  for  due  proc- 
ess of  law,  and  equal  protection  of  the  law. 
State  V.  Davis  (R.  I.)  1918C-563. 

(Annotated) 

3.  Cr.  Code  (Hurd's  Rev.  St.  1913,  c.  38),  § 
99,  providing  that  in  every  indictment  for 
obtaining  money  or  property  by  means  of  the 
confidence  game  it  shall  be  deemed  a  suffi- 
cient description  of  the  offense  to  charge  that 
accused  did  on,  etc.,  unlawfully  and  feloni- 
ously obtain  from  a  named  person  his  money 
or  property  by  means  and  by  use  of  the 
confidence  game,  does  not  violate  Const,  art. 
13,  §  9,  giving  the  accused  the  right  to  de- 
mand the  nature  and  cause  of  the  accusation 
against  him.  People  v.  Brady  (111.)  1918C- 
540.  (Annotated) 

4.  Const,  art.  1,  §  10,  declaring  that  in  all 
criminal  prosecutions  the  accused  shall  en- 
joy the  right  "to  be  informed  of  the  nature 
and  cause  of  the  accusation,"  requires  no 
greater  certainty  in  criminal  pleading  than 
the  common  law,  which  required  that  the 
elements  of  the  crime  be  fully  set  out.  State 
V.  Davis  (R.  I.)   1918C-563. 

5.  The  object  of  Const,  art.  13,  §  9,  giving 
accused  the  right  to  demand  the  nature  and 
cause  of  the  accusation,  is  notice  to  the  ac- 
cused, and,  when  the  statute  so  individuates 
the  offense  that  an  indictment  in  its  language 
is  notice  to  him  of  the  nature  and  cause  of 
the  charge  and  what  he  is  really  to  be  tried 
for,  it  is  insufficient.     People  v.  Brady  (111.) 

' 1918C-540. 

6.  An  indictment  is  good  which  charges  a 
statutory  offense  in  the  language  of  the 
statute  creating  it,  subject  to  the  qualifica- 
tion that  the  indictment  must  by  statutory 
description  or  other  apt  averment  so  identify 
the  offense  as  to  meet  the  constitutional  right 
of  accused  to  demand  the  nature  and  cause  of 
the  accusation,  but  the  legislature  may  pro- 
vide that  the  property  which  is  the  sub- 
ject of  the  crime  may  be  described  by  words 
of  general  description.  People  v.  Brady  (111.) 
1918G-540.  (Annotated) 


7.  Construction  of  statute. — Under  Cr. 
Code,  §  408,  providing  that  every  indictment 
shall  be  deemed  sufficient   wliich  states   tlie 

,  offense  in  the  language  of  the  statute  creat- 
ing it  and  so  plainly  that  the  nature  of  the 
offense  may  be  thoroughly  understood  by  the 
jury,  an  indictment,  setting  forth  the  offense 
so  that  the  accused  can  be  at  no  loss  to 
know  what  he  is  accused  of  so  that  he  may 
prepare  his  defense  and  so  that  a  conviction 
thereunder  may  be  pleaded  in  bar  of  another 
prosecution  for  the  same  offense,  is  sufficient. 
People  V.  Brady    (111.)    1918C-540. 

(Annotated) 

8.  The  requirement  that  the  indictment  al- 
lege the  offense  with  such  form  that  it  can 
be  made  the  foundation  of  a  plea  in  bar  to  a 
later  indictment  does  not  require  such  minute 
particularity  that  the  first  indictment  may 
constitute  a  bar  without  oral  proof  of  iden- 
tity of  offenses  charged,  since  such  oral 
proof  is  allowed,  and  under  Gen.  Laws  1909, 
c.  278,  §  3,  requiring  an  official  stenographic 
report  of  the  proceedings  of  a  criminal  trial, 
determination  as  to  identity  of  issues  is 
easy.     State  v.  Davis   (R.  L)    1918C-563. 

9.  Included  offenses. — Though  an  offense 
includes  lesser  offenses,  an  information 
charging  the  offense  need  not  incorporate 
all  of  the  ingredients  constituting  the  lesser 
offenses.  State  v.  Morse  (S.  Dak.)  19180- 
570. 

10.  Joinder  of  two  offenses. — An  indict- 
ment for  violation  of  a  statute  regulating 
hours  of  labor  in  manufacturing  or  mercan- 
tile establishments  which  alleges  the  opera- 
tion of  both  a  manufacturing  and  a  mercan- 
tile establishment  and  the  employment  of 
females  therein  in  violation  of  the  statute 
charges  but  a  single  offense.  Hotchkiss  v. 
District  of  Columbia   (D.  C.)  1918D-683. 

2.  Amendment. 

11.  An  indictment  can  be  amended  in  mat- 
ter of  substance  only  by  the  grand  jury 
which  returned  it,  or  with  the  consent  of 
accused  under  Gen.  Laws  1909,  c.  354,  §  4, 
providing  for  amendment  of  indictment  with 
consent  of  accused.  State  v.  Davis,  (R.  I.) 
19180-563. 

3.  Bill  of  Particulars. 

12.  Power  of  court. — A  court  may  order  a 
bill  of  particulars  by  virtue  of  its  general 
authoritv  to  regulate  trials.  State  v.  Davis 
(R.  I.)    19180—56.3. 

13.  Purpose. — The  object  of  a  bill  of  par- 
ticulars, in  case  where  the  offense  is  charged 
in  general  terms,  is  to  give  information  which 
will  be  of  service  to  the  accused  in  prepar- 
ing for  trial.  State  v.  Davis  (R.  I.)  19180- 
663. 

14.  Right  to  bill  of  particulars. — A  bill  of 
particulars  is  not  required  to  be  given  under 
an  indictment  charging  the  confidence  gam« 
in  the  language  of  the  statute,  either  to 
enable  the  accused  to  know  what  he  is 
charged  with,  or  that  he  may  plead  the  juds- 
ment  in  bar  of  another  prosecution  for  the 
same  offense.  People  v.  Brady  (111.)  1918C— 
540.  * 


INDUSTEIAL  ACCIDENT— INFANTS. 


119 


15.  Unless  otherwise  provided  by  statute, 
an  application  for  a  bill  of  particulars  is  ad- 
dressed to  the  judicial  discretion.  State  v. 
Davis   (R.  I.)   1918C-563. 

16.  Aiding  bad  indictment. — A  bill  of  par- 
ticulars will  not  aid  a  bad  indictment.  Peo- 
ple V.  Brady   (111.)    1918C-540. 

17.  As  amendment. — A  bill  of  particulars 
is  not  an  amendment  of  an  indictment,  nor 
does  it  supply  a  defect  therein.  State  v. 
Davis    (R  I.)    19180-563. 


INDUSTRIAL  ACCIDENT. 

See  Master  and  Sekvam,  12. 

INDUSTRIAL  BOARD. 

Bee  ilASTEE  A>-D  Sebvaxt,  7-9,  20,  21,  26. 

INFANTS. 

1.  Actions: 

a.  Guardian   ad  Litem  or  Next  Friend, 

119. 

b.  Proceedings  before  Master,  119. 

2.  Criminal  Responsibility,    119. 

3.  Juvenile  Courts: 

a.  Jurisdiction,   119. 

b.  Nature  of  Proceedings,  119. 

c.  Notice  to  Parent,  120. 

d.  Review,   120. 

Disability  of  infancy  as  affecting  running  of 
statute  of  limitations,  see  LnuTATiON  of 
Actions,  6,  7. 

1.  Actions. 

a.  Guardian  ad  Litem  or  Next  Friend. 

1.  Power  to  appoint. — The  power  to  ap- 
point a  guardian  ad  litem  to  manage  the  de- 
fense of  an  infant  is  one  inherent  in  every 
court  of  justice.  Flvnn  v.  Flynn  (111.) 
1918E-1G34. 

2.  Effect  of  fSilure  to  appoint. — ^Failure'to 
appoint  a  guardian  ad  litem  for  an  infant 
defendant,  who  has  been  duly  served  with 
process,  is  reversible,  but  not  jurisdictional, 
error,  and  renders  the  decree  pronounced 
against  such  infant  voidable,  but  not  abso- 
lutelv  void.  Linn  v.  Collins  (W.  Va.)  1918C- 
86. 

3.  Reappointment  in  appellate  court. — ^A 
minor  havino;  an  interest  in  proceedings  to 
probate  a  will  is  properly  made  a  party  to 
such  proceedings,  and,  on  contestant's  ap- 
peal from  the  county  court,  the  circuit  court, 
on  the  transcript  of  the  record  in  the  county 
court,  may  properly  appoint  for  the  minor, 
to  protect  her  interests,  the  guardian  ad 
litem  appointed  in  the  countv  court..  Flynn 
V.  Flynn    (111.)    1918E-1034. 

4.  Duty  to  follow  case  on  appeal. — A  guar- 
dian ad  litem,  for  a  minor  interested  in  the 
admission  to  probate  of  a  will,  appointed  in 
the   county  court,   is  under   duty   to  appear 


in  the  circ\iit  coujt,  when  the  contestant  ap- 
peals the  case  to  such  court.  Flynn  v.  Flynn 
(111.)   1918E-1034. 

5.  Taxation  of  fees. — The  contestant  of  a 
will,  who  appealed  from  the  county  to  the 
circuit  court  from  an  order  admitting  the 
will  to  probate,  is  properly  required  to  pay 
the  fees  of  a  guardian  ad  litem  appointed  by 
the  county  court  for  an  infant  defendant, 
and  also  appointed  by  the  circuit  court;  the 
will  having  been  admitted  to  probate  in  the 
circuit  com-t.  Flynn  v.  Flynn  (III.)  1918E- 
1034. 

b.  Proceedings  before  Master. 

G.  Erroneous  order — Proceeding  to  cany 
out  contract. — In  a  proceeding  on  account  of 
the  infancy  of  a  party  in  interest  seeking 
the  aid  of  the  court  to  carry  out  the  provi- 
sions of  an  option  timber  contract,  if  the 
master  attempts  to  exceed  his  authority  and 
convey  a  fee  in  the  timber,  the  excess  over 
the  rights  and  privileges  as  set  forth  in  the 
option  is  void.  Berry  v.  Marion  County  Lum- 
ber Co.   (S.  C.)   1918E-877. 

2.  Criminal  Responsibility. 

7.  Capacity  to  commit  crime. — The  pre- 
sumption of  incapacity  of  a  child  to  commit 
a  crime  is  conclusive  when  the  child  is  under 
the  age  of  7  years;  and  if  between  7  and  14, 
the  burden  is  on  the  state  to  show  that  the 
child  is  capable  of  appreciating  the  nature  of 
his  acts.  Juvenile  Ct.  v.  State  (Tenn.) 
1918D-752. 

3.  Juvenile   Courts. 

a.  Jurisdiction. 

8.  Jurisdiction. — In  a  proceeding  in  the 
juvenile  court  for  delinquency  of  a  child  al- 
leged to  have  killed  his  playmate,  the  age 
of  the  child  is  immaterial;  the  procedure  not 
being  criminal.  Juvenile  Ct.  v.  State  (Tenn.) 
1918D-752.  (Annotated) 

9.  Under  Pub.  Acts.  1911,  c.  58,  requiring 
that  if  a  child  brought  before  the  juvenile 
court  is  probably  guilty  of  murder  in  either 
degree,  he  shall  be  turned  over  to  the  coun- 
ty authorities  to  be  proceeded  against  ac- 
cording to  criminal  law,  the  juvenile  court 
has  no  jurisdiction  of  an  infant  alleged  to 
have  committed  homicide  if  the  judge  thinks 
he  is  probably  guilty.  Juvenile  Ct.  v.  State 
(Tenn.)    19180-752.  (Annotated) 

10.  Showing  of  Jurisdiction  on  Record. — 
The  juvenile  court  is  a  court  of  special  and 
limited  jurisdiction,  and  its  judgments  or  de- 
crees should  show  the  facts  upon  which  its 
jurisdiction  rests,  such  as  the  age  of  the 
child,  the  nature  of  the  proceedings,  the  serv- 
ice of  notice,  and  the  statutory  circum- 
stances of  delinquency.  Juvenile  Ct.  v.  State 
(Tenn.)    1918D-752.  (Annotated) 

b.  Nature  of  Proceedings. 

11.  Proceedings  in  the  juvenile  court  are 
not  criminal  in  their  nature,  and  are  not  in- 
stituted to  punish  the  child,  but  to  provide 


120 


ANN.  CAS.  DIGEST   (1918C-1918E 


for  his  welfare.    Juvenile  Ct.  v.  State  (Tenn.) 
1918D-752.  (Annotated) 

c.  Notice  to  Parent. 

12.  In  a  proceeding  under  Pub.  Acts.  1911, 
c.  58,  §  10,  on  arrest  of  an  infant  for  homi- 
cide, the  juvenile  court  proceedings  are  not 
void,  for  failure  to  give  mother  of  the  boy 
notice  where  she  is  present  at  the  hearing 
and  is  examined  as  a  witness,  since  she 
thereby  enters  her  appearance  and  Avaives  the 
statutory  requirement  of  notice.  Juvenile 
Ct.  V.  State   (Tenn.)   1918D-752. 

(Annotated) 

d.  Review. 

18.  Proceedings  in  the  juvenile  court  must 
he  reviewed  in  the  circuit  court  by  certiorari. 
State  V.  West,  (Tenn.)   19180-749. 

14.  Habeas  corpus. — Wliere  the  juvenile 
court  entered  a  judgment  that  a  child  was 
delinquent,  questions  determined  in  such  a 
proceeding  cannot  be  again  reviewed  in 
habeas  corpus  by  tlie  mother  of  the  child, 
assuming  that  the  proceedings  of  the  juve- 
nile" court  are  valid,  since  the  question  of  the 
child's  custody  is  res  ad  judicata.  Juvenile 
Ct.v.  State   (Tenn.)    1918D-752. 

(Annotated) 

15.  Under  Thompson's  Shannon's  Code,  § 
5503,  giving  authority  to  any  judge  of  the 
circuit,  common  law,  or  criminal  courts,  or 
to  any  chancellor  to  issue  a  writ  of  habeas 
corpus,  where  the  juvenile  court,  in  a  pro- 
ceeding under  Acts  1911,  c.  58,  entered  a 
judgment  awarding  custody  of  a  child,  the 
questions  determined  in  such  proceeding  can- 
not be  again  litigated  in  a  habeas  corpus 
proceeding,  by  the  same  parties,  on  the 
same  state  of  facts.  State  v.  West  (Tenn.) 
1918D-749.  (Annotated) 


INFERENCE. 

Defamation    by    inference,    see    Libel    and 
Slander,  2. 


INFORMATIONS. 

See  Indictments  axd  Informations. 

INHERITANCE  TAXES. 

See  Taxation,  52-58. 

INITIATIVE  AND  REFERENDUM. 

Injunction  against  submission  of  legislative 
act,  see  Injunctions,  1-3. 

1.  Determination  of  validity  of  initiated 
ordinance. — The  constitutionality  of  a  mu- 
nicipal ordinance  which  is  to  be  presented  to 
the  voters  for  adoption  will  not  be  deter- 
mined before  it  is  adopted.  Pitman  v.  Dra- 
belle   (Mo.)    1918D-601. 


2.  Validity  of  charter  provision. — Const, 
art.  9,  §  22,  amendment  of  1902,  relating  to 
the  charter  of  St.  Ijouis,  declares  that  such 
charter  shall  be  in  harmony  with  and  subject 
to  the  constitution  and  laws  of  the  state, 
and  sliall  provide  for  a  chief  executive  and 
"at  lease  one  house  of  legislation,"  to  be 
elected  by  general  ticket.  Const,  art.  5, 
§  57,  amendment  of  1908,  provides  for  the 
initiative  and  referendum.  Xew  charter  St. 
Louis,  art.  5,  §§  l-(j,  gives  the  people  of  the 
city  the  right  to  legislate  by  ballot  if  the 
»ne  house  of  legislation  fails  to  act  upon 
certification  to  it  of  petitions  showing  meas- 
ures which  the  electorate  desire  adopted. 
The  charter  provided  a  single  house  of  legis- 
lation. It  is  held  that  in  view  of  the  con- 
stitutional provision  as  to  initiative,  and 
the  fact  that  by  Laws  1913,  p.  443,  §  29. 
initiative  powers  were  given  to  cities  of  the 
second  and  third  class,  the  charter  of  the 
city  of  St.  Louis  was  not  invalid  because  con- 
taining such  initiative  provision;  the  single 
"house  of  legislation"  required  by  the  con- 
stitution being  given  powers  of  legislation 
in  the  first  instance.  Pitman  v.  Drabelle 
(Mo.)   1918D-601. 


INJUNCTIONS. 

1.  Subjects  of  Relief: 

a.  Municipalities     and     Public     Officers, 

120. 

b.  Civil  Actions  and  Proceedings,  121. 

c.  Criminal  Proceedings.    121. 

2.  Actions  for  Injunctions,   122. 

3.  Temporary  Injunction,    122. 

4.  Injunction  Bond,  122. 

Against   labor   unions,   see   Labor  Combina- 
tions, 4,  7,  13. 

Against  solicitation  by  former  employee,  see 

Master  and  Servant,   1,  2. 
'Against    state    insurance    board,    see    Insur- 
ance, 15. 

To  test  validity  of  grant  of  liquor  license,  see 
Intoxicating  Liquors,  1-3. 

1.  Subjects  of  Relief. 

a.  Municipalities  and  Public  Officers. 

1.  Submission  of  legislative  act. — Taxpay- 
ers who  object  to  the  submission  of  a  legis- 
lative act  to  referendum  vote  on  the  ground 
that  the  constitutional  amendment  appear- 
ing in  Laws  1914,  c.  520,  providing  for  in- 
itiative and  referendum  is  invalid,  do  not, 
where  the  question  is  to  be  submitted  at  the 
general  election  and  the  expense  will  be 
slight,  suffer  any  irreparable  injury  entitling 
them  to  an  injunction.  Power  v.  Ratliff 
(Miss.)   1918E-li46. 

2.  A  game  warden  appointed  under  Law>, 
1916,  c.  99,  cannot,  on  the  theory  that  he  is 
entitled  to  the  emoluments  of  his  office  and 
that  a  referendum  of  the  act  to  the  voters 
will  work  irreparable  injury,  secure  an  order 
enjoining  submission  on  the  theory  that  the 
constitutional    amendment    found    in    Laws 


injui^ctio:n^s. 


121 


1914,  c.  520,  providing  for  initiative  or  ref- 
erendum was  void,  for  the  law  may  be  up- 
held by  the  voters,  and  if  repealed  the  war- 
den can  then  attack  tlie  repeal.  Power  v. 
Ratliff    (Miss.)    1918E-1146.  (Annotated) 

3.  Though  the  constitutional  amendment 
found  in  Laws  1914,  c.  520,  providing  for  in- 
itiative and  referendum  is  void,  a  referen- 
dum election  cannot  be  enjoined  on  the  the- 
ory that  if  the  legislation  be  repealed  the  re- 
peal will  be  invalid,  but  the  proper  proced- 
ure is  to  take  appropriate  action  to  prevent 
the  execution  of  any  proposition  voted  upon, 
for  the  question  of  the  validity  of  legisla- 
tion is  not  one  for  the  courts,  until  the  leg- 
islation is  completed,  and  imtil  then  the 
courts  cannot  determine  whether  the  proper 
forms  have  been  pursued,  for  an  attempt  by 
injunction  to  prevent  a  referendum  election 
might  well  violate  the  right  of  the  people  to 
peaceably  assemble  for  political  purposes. 
Power  V.  Ratliff  (Miss.)  1918E-1146. 

(Annotated) 

b.  Civil  Actions   and  Proceedings. 

4.  Another  action  pending. — Complainant 
brought  a  suit  in  equity  in  a  federal  court 
to  obtain  a  construction  of  his  father's  will 
and  a  decree  adjudging  him  to  be  entitled  to 
the  entire  beneficial  interest  in  the  estate. 
The  bill  made  defendants  the  trustee  under 
the  will  and  a  nephew  and  niece  of  testator 
who  were  alleged  to  claim  an  interest  as 
heirs  at  law.  It  also  averred  that  there 
might  be  other  collateral  heirs,  but,  if  so, 
they  were  unknown  to  complainant.  The 
answer  of  the  two  latter  defendants  set  up 
their  claims,  and  alleged  on  information  and 
belief  that  there  were  other  collateral  heirs 
having  like  interests,  but  that  their  names 
were  unknown  to  the  answering  defendants. 
The  case  was  contested,  and  resulted  in  a  de- 
cree in  accordance  with  the  prayer  of  the  bill, 
and  directing  an  accounting  by  the  trustee 
to  complainant.  Before  such  accounting  a 
>5uit  was  brought  in  a  state  court  by  a  large 
number  of  persons  against  complainant  and 
the  trustee  seeking  to  establish  the  right  to 
the  estate  in  themselves  and  other  collateral 
heirs.  It  is  held  that  the  issues  sought  to  be 
raised  in  such  suit  Avere  the  same  as  those 
litigated  and  determined  by  the  federal 
court;  that  the  jurisdiction  of  the  subject- 
matter  first  acquired  by  that  court  was  ex- 
clusive, and  that  complainant  was  entitled  to 
an  injunction  to  restrain  the  prosecution  of 
the  suit  in  the  state  court.  McClelland  v. 
Rose   (U.  S.)    19180-341. 

5.  Against  execution  sale. — A  sale  upon 
execution  will  bo  enjoined  in  equity  when  it 
would  constitute  a  cloud  on  the  title  of 
realty.  Townsend  v.  Chamberlain  (Ore.) 
191SC-330.  (Annotated) 

6.  An  action  can  be  maintained  by  the 
owner  of  real  property  to  enjoin  its  sale  un- 
der an  execution  issued  on  a  judgment 
against  another  person  in  an  action  to  which 
the  owner  of  the  property  was  not  a  party. 
Yount  V.  Hoover  (Kan.)  19180-148. 

(Annotated) 

7.  Under   the    statute,    an    action   may   be 


maintained  to  restrain  a  sale  under  execu- 
tion if  the  deed  of  the  officer  who  sells  will 
not  pass  title,  and  will  only  throw  a  cloud 
upon  the  title  of  the  plaintiff.  Harris  v.  Car- 
olina Distributing  Co.   (N.  C.)  1918C-329. 

(Annotated) 

8.  An  injunction  should  not  be  gianted  by 
the  chancery  court  to  prevent  the  issuing  of 
execution  based  upon  a  judgment  at  law,  un- 
less the  facts  show  the  clearest  and  strong- 
est reasons  for  the  interposition  of  the  court 
of  chancery.  Welch  v.  Hannie  (Miss.) 
1918C-325.  (Annotated) 

9.  Adequate  remedy  at  law, — The  court 
erred  in  gianting  the  injunction.  When  that 
part  of  the  petition  which  was  based  upon 
the  theory  that  the  fi.  fa.  (against  the  en- 
forcement of  which  injunction  was  sought) 
was  a  cloud  upon'  the  title  of  plaintiff  was 
stricken  upon  demurrer,  to  which  ruling 
there  was  no  exception,  the  only  purpose 
that  an  injunction  could  serve  would  be  to 
prevent  enforcement  of  the  execution  by 
levy;  and  relatively  to  this  branch  of  relief 
sought,  the  plaintiff  will  have  an  adequate 
remedy  at  law,  when  a  levy  of  the  execution 
is  actually  made,  by  filing  a  claim  as  provid- 
ed by  statute.  Douglas  v.  Jenkins  (Ga.) 
1918C-322.  (Annotated) 

c  Criminal  Proceedings. 

10.  Against  enforcement  of  penal  statute. 
— The  prosecution  and  pimishment  of  crime 
will  not  be  restrained  by  a  coiirt  of  chancery, 
except  that  equity  has  jurisdiction  to  re- 
strain the  institution  of  prosecutions  ujider 
luiconstitutional  or  void  statutes  or  local  or- 
dinances, when  property  rights  would  be  irre- 
])arably  injured,  and  the  other  elements  nec- 
essary to  support  cognizance  by  equity  are 
present,  since  private  personal  and  property 
lights  will  be  protected  by  injunction  from 
irreparable  and  unlawful  injury.  Shuman  v. 
Gilbert    (Mass.)    1918E-793."  (Annotated) 

11.  A  bill  by  six  merchants,  firms,  and  cor- 
porations, which  alleged  that  defendant, 
chief  of  police  of  a  city,  was  threatening  to 
prosecute  them  for  violation  of  a  statute 
prohibiting  hawking  and  peddling,  though 
they  had  not  violated  it,  did  not  make  a  case 
for  equitable  relief  by  injunction  against  the 
chief  of  police,  but  fell  within  the  general 
principle  that  courts  of  equity  will  not  en- 
join the  institution  of  prosecutions  from  al- 
leged crimes.  Shuman  v.  Gilbert  (Mass.) 
1918E-793.  (Annotated) 

12.  Injury  to  business. — Simply  that  one 
is  in  business  and  may  be  injured  in  respect 
thereto  by  prosecution  for  an  alleged  crime 
is  no  sufficient  reason  for  asking  a  court  of 
equity,  in  suit  to  enjoin  the  officer  from  pros- 
ecuting, to  ascertain  in  advance  whether  the 
business  as  conducted  is  in  violation  of  a 
lienal  statute.  Shuman  y.  Gilbert  (Mass.) 
1918E-793.  (Annotated) 

13.  Multiplicity  of  suits. — A  complaint  by 
six  merchants,  firms,  and  corporations,  al- 
leging the  possibility  that  complaints  may 
be  lodged  against  them  imder  a  statute  pro- 
hibiting hawking  and  peddling,  which  they 
have  not  violated,  does  not  make  out  a  case 


122 


ANN.  CAS.  DIGEST  (1918C-1918Ej. 


of  multiplicity  of  prosecutions,  justifying  in- 
junction against  the  officer  who  would  bring 
them.  Shuman  v.  Gilbert  (Mass.)  1918E- 
793.  (Annotated) 

2.  Actions  for  Injunctions. 

14.  Parties. — The  judgment  creditor  is  not 
a  necessary  party  in  an  action  to  enjoin  a 
sheriff  from  selling  the  property  of  a  third 
person  under  an  execution  issued  on  a  judg- 
ment in  an  action  to  which  such  third  per- 
son was  not  a  party.  Yount  v.  Hoover 
(Kan.)   19180-148.  (Annotated) 

16.  The  state  officials  whose  duty  and  in- 
tention it  is  to  tabulate  the  returns  and  pro- 
mulgate the  result  of  an  election  in  which  a 
special  and  local  statute  appears  to  have 
been  adopted  by  a  majority  vote  of  the  elec- 
tors of  a  municipality  affected  by  the  stat- 
ute, are  the  proper  defendants  in  an  injunc- 
tion suit  by  the  municipal  corporation  to 
prevent  the  law  from  going  into  effect,  on 
the  ground  that  it  violates  the  constitution. 
Gretna  v.  Bailey  (La.)  1918E-566. 

16.  Pleading. — Before  a  court  of  chancery 
will  enjoin  the  issuing  of  an  execution  on  a 
default  judgment  at  law,  the  complainant 
must  allege  in  his  biU  facts  showing  a  good 
and  meritorious  defense  to  the  action;  it  not 
being  enough  to  merely  allege  the  conclusion 
of  law.    Welch  v.  Hannie  (Miss.)  1918C-325. 

(Annotated) 

17.  In  an  action  to  enjoin  the  issuing  of 
execution  based  upon  a  default  judgment  at 
law,  a  statement  of  complainant's  counsel 
that  complainant  had  a  good  and  meritorius 
defense  to  the  action  at  law  is  but  a  legal 
conclusion  of  the  attorney,  and  not  admissi- 
ble.   Welch  V.  Hannie  (Miss.)  1918C-325. 

(Annotated) 

18.  Effect  of  demurrer. — ^In  a  complaint 
seeking  to  enjoin  an  officer  from  enforcing 
a  statute  against  complainants,  allegations 
respecting  the  course  of  law  and  proceedings 
in  court  in  the  commonwealth,  assuming 
that  complainants,  though  plainly  innocent 
of  any  infraction  of  law,  will  be  found  guilty 
by  the  district  and  superior  courts,  are  not 
admitted  by  demurrer.  Shuman  v.  Gilbert 
(Mass.)    1918E-793.  (Annotated) 

19.  Evidence. — ^In  a  suit  to  enjoin  an  ex- 
ecution, the  validity  of  the  judgment  turned 
upon  the  question  of  fact  whether  some  five 
years  before  a  previous  execution  was  issued 
on  the  5th  day  of  March,  1908,  prior  to  the 
time  the  judgment  would  have  become  dor- 
mant. The  execution  was  dated  in  the  fol- 
lowing manner:  "This -4  5  day  of  May  Mch 
1908."  The  appearance  docket,  the  execu- 
tion docket,  and  the  indorsement  on  the  back 
of  the  execution  showed  that  it  was  issued 
March  5,  1908.  The  body  of  the  execution 
recited  that  it  was  returnable  May  4,  1908, 
and  the  sheriff's  return  stated  that  he  re- 
ceived it  March  5,  1908.  Held,  that  the  ev- 
idence sustained  the  finding  that  the  execu- 
tion issued  March  5,  1908.  Sparks  v.  Martin 
(Kan.)    19180-324.  (Annotated) 

20.  In  such  an  action,  the  records  in  the 
office  of  the  clerk  of  the  district  court  show- 
ing the  issuance  of  an  execution  cannot  be 


impeached  by  testimony  of  a  witness  that  in 
a  conversation  with  the  deputy  clerk  of  the 
district  court,  subsequent  to  the  date  when 
the  judgment  would  have  become  dormant, 
the  clerk  stated  to  him  that  no  execution  on 
the  judgment  had  issued.  Sparks  v.  Martin 
(Kan.)  19180-324.  (Annotated) 

3.  Temporary  Injunctioo. 

21.  Damages  for  wrongful  issuance — ^Duty 
to  minimize. — ^Where  one  enjoined  from  fenc- 
ing a  roadway  finally  prevailed  and  it  ap- 
peared that  he  could  have  moved  his  fence 
back  pending  litigation  for  $75,  it  was  his 
duty  to  do  so,  and  he  cannot  obtain  $907 
damages  on  the  injunction  bond  for  damages 
from  loss  of  the  use  of  fields  left  open,  it  be- 
ing his  duty  to  minimize  the  damages  as 
much  as  he  reasonably  could.  Johnson  v. 
Brown  (Tenn.)  19180-672.  (Annotated) 

4.  Injunction  Bond. 

22.  Summary  judgment. — In  a  suit  to 
foreclose  a  mortgage  on  timber  lands,  where 
the  mortgagor,  to  prevent  an  injunction 
against  cutting  timber,  has  given  a  bond  con- 
ditioned on  paying  any  judgment  rendered 
against  it,  a  decree,  that  the  mortgagee  shall 
recover  of  the  mortgagor  and  the  surety  on 
the  bond  the  amount  of  the  mortgage,  and 
have  execution  against  them  for  any  defi- 
ciency after  the  sale  of  the  property,  is  not 
merely  an  ascertainment  of  the  amount  due 
prior  to  sale,  but  is  a  "final  decree"  dispos- 
ing of  all  the  issues,  which  fixes  the  liability 
of  the  surety  on  the  bond.  United  States  Fi- 
delity, etc.  Oo.  V.  Burke  (U.  S.)   19180-93. 

(Annotated) 

23.  In  a  proceeding  to  foreclose  a  mort- 
gage on  timber  land,  the  court  has  jurisdic- 
tion over  the  surety  on  a  bond  given  to 
prevent  injunction  against  the  cutting  of  tim- 
ber, and  can  render  judgment  against  the 
surety  for  the  deficiency  after  notice  to  the 
surety  of  application  for  judgment.  United 
States  Fidelity,  etc.  Co.  v.  Burke  (U.  S.) 
19180-93.         *  (Annotated) 


INNKEEPERS. 

1.  Liability  for  insult  to  guest. — In  an  ac- 
tion by  a  guest  in  defendant's  hotel,  where  the 
evidence  shows  a  wrongful  invasion  of  plain- 
tiff's room,  a  violation  of  his  rights  of  pri- 
vacy, and  humiliation  suffered  on  account  of 
the  rtemoval  of  his  effects  therefrom,  dam- 
ages for  humiliation  and  indignity  may  be 
awarded.  Florence  Hotel  Oo.  v.  Bumpas 
(Ala.)    1918E-252.  (Annotated) 

2.  Burden  of  justifying  ejection. — ^Where 
one  has  shown  himself  admitted  as  a  guest, 
the  burden  is  on  the  innkeeper  to  justify  his 
ejection.  Florence  Hotel  Co.  v.  Bumpaa 
(Ala.)  1918E-252. 


INQUIRY. 

Necessity    for    writ    of   inquiry    in    justice's 
court,  see  Justices  of  the  Peace,  3,  4. 


INSANITY— INSUKA^XE. 


123 


INSANITY. 

Imputation  of   insanity  as   libel,   see   Libei, 

AND  Slandkb,  6. 
Testamentary  capacity,  see  Wills,  5-3. 


INSOLVENCY. 

Of  corporations,  see  Corporations,  43,  4-L 

INSTRUCTIONS. 

See  Compromise,   1;   Death  by  Weongfui. 

Act,  17;  Elevators,  5;  Fibe  Insur- 
ance, 21;  Fraud,  15;  Homicide,  13-15; 
Intoxicating    Liquors,    17-19;     Libel 

AND     SLAJfDEB,     57-64;     RaILEOADS,     19; 

Seduction,  4. 
As  to  evidence  of  delusion  of  testator,  see 

Wills,  5. 
As  to  undue  influence  of  testator,  see  Wills, 

10. 
Harmless  error  see.  Appeal  and  Error,  83, 

84. 
In  action  under  federal  employer's  liability 

act,  see  Master  axi)  Servant,  35. 
Objections,  see  Appeal  and  Error,  98. 

1.  Defining  terms  used. — Where  the  court 
uses  the  words  "fraud"  and  "fraudulently" 
in  its  instructions,  it  is  not  necessary  to  de- 
liue  them,  since  they  are  not  of  technical  sig- 
nificance, especially  ^rhere  neither  party  re- 
quests a  definition.  Smead  v.  Stearns  (la.) 
1918C-745. 

2.  Verbal  inaccuracies. — ^Verbal  inaccura- 
cies in  a  charge,  where  it  correctly  and  fair- 
ly presents  the  law  as  a  whole,  are  not 
ground  for  reversal.  McCue  v.  State  (Tex.) 
1918C-674. 

3.  Abstract  instruction. — ^An  abstract  in- 
struction is  properlv  refused.  Com.  v.  John 
T.  Connor  Co.  (Mass.)  1918C-337. 

4.  Misleading  request. — An  instruction 
which  is  misleading  and  confusing  in  the  ex- 
treme is  properlv  refused.  Rosmau  v.  Trav- 
elers' Ins.  Co.  (Md.)  1918C-1047. 

5.  Cautionary  instruction. — Refusal  of  a 
cautionary  instruction  is  within  the  discre- 
tion of  the  trial  court.  Childers  v.  Brown 
(Ore.)  1918D-170. 

6.  It  is  proper  to  give  cautionarj-  instruc- 
tions relative  to  the  consideration  of  verbal 
admissions;  but  if  given  they  should  be  so 
framed  as  not  to  disparage  or  minimize  their 
natural  and  reasonable  effect  as  items  of 
proof.  Blume  v.  Chicago,  etc.  R.  Co.  (Minn.) 
1918D-297.         .  (Annotated) 

7.  Disregard  of  immaterial  testimony. — It 
is  the  duty  of  the  court  to  instruct  the  jury 
to  disregard  immaterial  testimony  elicited 
with  such  as  is  material.  Harlow  v.  Perry 
(Me.)  1918C-37. 

8.  Disregarding  theory  supported  by  ev- 
idence.— A  binding  instruction  is  properly  re- 
jected which  excludes  the  theory  of  one  of 
ithe  parties,  and  which  the  evidence  tends  in 
an  appreciable  degree  to  support.  Parkers- 
burg,  etc.  Sand  Co.  v.  Smith  (W.  Va.) 
1918E-449. 


9.  Request  not  based  on  evidence. — ^An  in- 
struction that  the  defendant,  in  an  assault 
and  battery  case,  is  not  liable  for  damages 
caused  by  aggravation  of  the  injury  due  to 
his  own  neglect,  is  proper  enough  in  the  ab- 
stract, but  the  refusal  to  give  such  an  in- 
struction in  this  case  was  not  error,  since 
there  was  no  sufficient  evidence  to  sustain  a 
finding  of  such  neglect.  Patterson  v.  Blatti 
(Minn.)   1918D-63. 

10.  In  an  action  against  a  railway  for  in- 
juries, where,  imder  all  the  evidence,  there 
was  no  material  issue  of  fact  for  the  jury  to 
determine  on  the  question  of  defendant's 
negligence,  error  in  charging  the  doctrine  of 
res  ipsa  loquitur  is  harmless.  Memphis  St. 
R.  Co.  V.  Cavell  (Tenn.)  1918C-42. 

11.  Requests  given  in  substance. — It  is 
enough  that  requested  instructions  are  given 
in  substance  by  the  court.  Perry  v.  Dea- 
mond  Ice,  etc.  Co.  (Wash.)   1918C-891. 

12.  Requested  instructions,  given  in  sub- 
stance, are  properly  refused.  Childers  v. 
Brown   (Ore.)   1918D-170. 

13.  The  refusal  of  a  requested  instruction 
is  not  error,  where  it  is  given  by  the  grant- 
ing of  another  requested  instruction.  Ros- 
man  v.  Travelers  Ins.  Co.  (Md.)  1918C-1047.' 

14.  Refusal  of  a  requested  instruction  on 
reasonable  doubt  is  not  reversible  error 
where  other  portions  of  the  charge  covered 
the  ground.  Holland  v.  State  (Ark.)  1918C- 
578. 

15.  Error  cured  by  other  instructions. — 
AMiere  accused's  defense  was  alibi,  the  error 
in  a  charge  on  principal,  which  did  not  re- 
quire the  jury  to  find  that  accused  was  per- 
sonally present  at  the  killing,  must  be  dis- 
legarded,  where  other  paragraphs  of  the 
charge  directed  acquittal  in  case  of  a  reason- 
able doubt  as  to  whether  accused  was  pres- 
ent at  the  killing.  McCue  v.  State  (Tex.) 
1918C-674. 


INSURABLE    INTEREST. 

See  Fibe  Insubance,  1-3. 

INSURANCE. 

1.  Insurance  Agents  and  Brokers: 

a.  In  General,  124. 

b.  Liability  to  Insurer,  124. 

2.  Statutory  Regulations,  124.. 

3.  Construction  of  Policy  Generally,  125. 

4.  Warranties  and  Rerpresentations,  125. 

5.  Waiver  of  Provisions,  125. 

6.  Liability  Insurance: 

a.  Construction  of  Contract,   125. 

b.  Actions,  126. 

7.  Automobile  Insurance,  127. 

8.  Credit  Insurance,  127. 

9.  Health  Insurance,  127. 

See  Accident  Insurance;  Beneficial  As- 
sociations; Fibe  Insubance;  Life  In- 
siTjANCE:    Marine    Insubajsce. 


124 


ANN.  CAS.  DIGEST  (1918C-1918E). 


As  mitigation  of  damages  in  action  for  per- 
sonal injury,  see  Damages,  1. 

Declarations  and-  admissions  of  insured,  see 
Admissions  and  Dkcxarations,  ;}-(). 

Implied  trust  in  proceeds  of  insurance  on 
buildings  constructed  by  tenant,  see 
Trusts  and  Tbustees,  6. 

iProof  of  age  of  insured,  see  Evidence,  41. 

Validity  of  provision  against  interest  in  con- 
tract of  insurance,  see  Interest,  1. 

1.  Insurance  Agents  and  Brokers. 

a.  In  General. 

1.  Representations  inconsistent  with  pol- 
icy.— The  general  agent  of  a  credit  insurance 
company,  though  authorized  to  make  con- 
tracts and  issue  insurance  policies,  and  to 
vary  the  terms  of  the  policies  and  bind  his 
company,  though  contrary  to  the  express 
terms  of  his  contract  of  employment,  nev- 
ertheless cannot,  by  contemj)oraneous  oral 
representations,  override  the  express  agree- 
ment for  insurance  made  by  plaintiffs,  and 
contained  in  the  written  applications  signed 
by  one  of  them.  Cauman  v.  American  Credit 
Indemnity  Co.  (Mass.)  1918E-841. 

2.  Whatever  the  apparent  authority  of  a 
special  and  a  general  agent  of  a  credit  in- 
surance company,  persons  who  attempt  to 
secure  credit  insurance  are  charged  with 
knowledge  that  no  representations  or  agiee- 
ments  made  by  the  two  agents  will  bind  the 
insurance  company,  if  contrary  to  the  terms 
of  the  application  and  of  the  policies  an- 
nexed and  referred  to  in  the  applications. 
Cauman  v.  American  Credit  Indemnity  Co. 
(Mass.)   1918E-841.  (Annotated) 

3.  Authority  of  agent. — ^Where  the  agent 
of  a  credit  insurance  company  represented 
himself  to  one  who  desired  to  secure  insur- 
ance as  a  special  agent,  the  person  desiring 
insurance  was  bound  to  ascertain  the  nature 
and  extent  of  his  authority.  Cauman  v. 
American  Credit  Indemnity  Co.  (Mass.) 
1Q18E-841. 

4.  The  limitations  placed  upon  the  author- 
ity of  the  general  agent  of  a  credit  insurance 
company,  contained  in  the  written  agree- 
ment under  which  he  was  employed,  do  not 
affect  the  rights  of  third  persons,  who^  with- 
out knowledge  of  such  limitations,  deal  with 
him  within  the  apparent  scope  of  his  author- 
ity. Cauman  v.  American  Credit  Indemnity 
Co.   (Mass.)   1918E-841. 

I 

\  b.  Liability  to  Insurer. 

r 

i  5.  Failure  to  cancel  policy. — Insurance 
agents,  sued  by  their  company  for  loss  from 
not  canceling  policies  as  directed  by  it,  can- 
not deny  that  it  was  their  duty  to  do  so, 
they  having  undertaken  to  do  it,  when,  had 
they  refused,  it  might  seasonably  have  been 
done  by  the  company.  National  Union  F. 
Ins.  Co.  V.  Dickinson   (Wash.)  1918C-1042. 

(Annotated) 

6.  Binding  effect  of  judgment  on  policy. — 

Insurance  agents  liable  to  their  company  for 

any  loss   on  policies,  because  they   did   not 

cancel  them  as  directed  by  it,  are  bound  by 


the  judgment  against  the  company  in  the  ac- 
tion on  tlie  policies,  on  the  (]ue8tion  there 
litigated  whether  proper  proofs  of  loss  were 
made,  defense  of  such  action  having  been 
tendered  tliem  by  the  company,  though  they,  , 
while  actively  assisting,  declined  to  assume 
the  defense.  National  Union  F.  Ins.  Co.  v. 
Dickinson   (Wash.)   1918C-1042.    (Annotated) 

7.  Evidence. — Evidence  in  action  by  an  in- 
surance company  against  its  agents  is  held 
to  authorize  a  finding  that  they  had  not  can- 
celed policies  as  directed  by  it,  or  even  used 
ordinary  care  to  do  so.  National  Union  F. 
Ins.  Co.  V.  Dickinson   (Wash.)   1918C-1042. 

(Annotated) 

2.  Statutory  Regulations. 

8.  Validity    of    statute    creating    board.— 

Chapter  174,  Sess.  Laws  1915,  p.  340,  creat- 
ing a  state  insurance  board  and  providing 
for  the  regulation  and  control  of  rates  of 
premiums  on  insurance,  and  for  other  pur- 
poses therein  specified,  is  not  in  violation  of 
any  rights  of  the  companies  affected  thereby 
doing  business  in  this  state  secured  to  them 
by  the  fourteenth  amend,  to  the  Constitution 
of  the  United  States,  and  is  within  the  legit- 
imate police  power  of  the  state.  Insurance 
Co.  of  North  America  v.  Welch  (Okla.) 
1918E-471.  lAnnotated) 

9.  The  business  of  insurance  affected  by 
the  provisions  of  said  act  is  of  such  nature 
and  affected  with  such  a  public  interest  as  to 
justify  legislative  regulation  thereof  and  of 
the  rates  charged  by  the  companies  engaged 
in  such  business.  Insurance  Co.  of  North 
America  v.  Welch    (Okla.)    1918E-471. 

(Annotated) 

10.  It  is  within  the  power  of  the  legisla- 
tiue  to  create  a  state  insurance  board,  and 
to  require  every  fire,  tornado,  and  plate  glass 
insurance  company  and  eVery  insurance  com- 
pany granting  insurance  against  the  liability 
of  employers  to  file  with  said  board  a  sched- 
ule of  rates  charged  by  it  for  such  risks,  and 
to  prohibit  a  change  in  such  rates  except  af- 
ter ten  days'  notice  to  said  board  of  such 
contemplated  change,  and  authorizing  said 
board,  when  it  shall  determine  that  any  rate 
is  excessive  or  unreasonably  high,  or  that 
said  rate  is  inadequate  to  the  safety  or 
soundness  of  the  company  granting  the 
same,  to  direct  said  company  to  file  a  higher 
or  lower  rate,  commensurate  with  the  risk 
and  further  requiring  that  in  every  case  the 
rate   shall   be  reasonable,   when   provision   is 

•  made  for  a  review  of  the  orders  of  said  board 
by  the  courts.  Insurance  Co.  of  North  Amer- 
ica V.  Welch  (Okla.)  1918E-4ri. 

(Annotated) 

11.  Section  174,  Sess.  Laws  1915,  p.  340,  is 
not  violative  of  the  provisions  of  sections 
22,  23,  and  24  of  article  6  of  the  constitution, 
creating  the  insurance  department  and  the 
office  of  insurance  commissioner,  nor  does 
such  act  deprive  the  insurance  commissioner 
of  any  powers  or  duties  conferred  upon  him 
by  the  constitution.  Insurance  Co.  of  North 
America  v.  Welch  (Okla.)  1918E-471. 

(Annotated) 


IXSL'RA]S'CE. 


125 


12.  The  gi-ant  to  the  legislature  of  specific 
authority  by  section  19,  art.  9  of  the  consti- 
tution to  vest  in  the  corporation  commis- 
sion additional  powers  and  duties  in  connec- 
tion with  the  visitation,  regulation,  or  con- 
trol of  corporations,  or  with  prescribing  and 
enforcing  rates  and  charges  to  be  observed  in 
the  conduct  of  any  business,  where  the  state 
has  the  riglit  to  prescribe  the  rates  and 
charges  in  connection  therewith,  does  not  de- 
prive the  legislature  of  its  power  to  regulate 
and  control  such  matters  or  to  create  the 
state  insurance  board  and  vest  it  witli  the 
powers  enumerated  in  said  cliapter  174,  Sess. 
Laws  1915.  Insurance  Co.  of  North  America 
V.  Welch   (Okla.)    1918E-471.  (Annotated) 

13.  Exempting  domestic  mutual  tire  insur- 
ance companies  and  reciprocal  associations 
and  mutual  insurance  companies  and  recipro- 
cal associations  doing  business  in  this  state 
from  the  provisions  of  said  act  does  not  ren- 
der such  legislation  invalid  as  to  other  in- 
surance companies,  as  denying  them  tlie 
equal  protection  of  the  laws.  Insurance  Co. 
of  North  America  v.  Welch  (Okla.)  1918E- 
471.  (Annotated) 

14.  The  title  of  the  act  is  sufficiently  com- 
prehensive to  embrace  the  various  provisions 
thereof.  Insurance  Co.  of  North  America  v. 
Welch   (Okla.)  1918E-471. 

15.  Provision  having  been  made  for  an  ap- 
peal to  this  court  from  any  regulation,  order 
or  rate  adopted  by  said  board,  said  provision 
gives  a  speedy  and  adequate  remedy,  and  an 
injunction  will  not  lie  to  restrain  said  board 
from  proceeding  in  a  matter  within  its  law- 
ful jurisdiction.  Insurance  Co.  of  North 
America  v.  Welch  (Okla.)  1918E-471. 

(Annotated) 

3.  Construction  of  Policy  Generally. 

16.  A  policy  of  insurance  being  a  written 
contract,  its  terms  must  be  given  a  reason- 
able construction,  and  not  stretched  beyond 
their  evident  meaning.  Rocci  v.  ^lassachu- 
setts  Accident  Co.   (Mass.)   1918C-529. 

17.  When  the  language  used  in  a  policy  is 
unambiguous,  its  usual  and  ordinary  mean- 
ing should  be  attributed  to  it.  Wisconsin 
Zinc  Co.  v.  Fidelity,  etc.  Co.  (Wis.)  1918C- 
399. 

18.  Construction  against  insurer. — Policies 
will  be  construed  most  strongly  against  the 
company  and  in  favor  of  the  insured.  Em- 
inent Household  of  Columbian  Woodmen  v. 
Bunch    (Miss.)    1918C-110. 

19.  Obscure  or  equivocal  words  and 
phrases  in  a  policy  of  insurance  must  be  con- 
strued strongly  against  the  insurer:  but  the 
rule  does  not  apply  where  the  words  are  so 
l>lain  as  to  leave  no  room  for  construction. 
Rocci  V.  Massachusetts  Accident  Co.  (Mass.) 
191SC-r>29. 

20.  Understanding  of  insured. — Where 
reasonable  doubt  exists  as  to  moaning  of  in- 
surance contract,  the  construction  tliat  will 
carry  out  the  insured's  understanding  should 
be  adopted,  where  his  understanding  is  based 
upon  representations  made  by  the  company, 
Forman  v.  Mutual  L.  Ins.  Co.  (Ky.)  1918E- 
880. 


4.  Warranties  and   Representations. 

21.  Amount  to  be  realized  from  policy. — 
In  action  by  an  insured  to  recover  difference 
between  surplus  as  computed  by  defendant 
insurance  company  and  amount  guaranteed 
when  policy  was  issued,  evidence  is  held  to 
be  sufficient  to  show  that  insured  was  in- 
duced to  take  out  policy  by  insurer's  repre- 
sentations as  to  the  amount  of  surplus  he 
would  receive.  Forman  v.  Mutual  L.  Ins.  Co. 
(Ky.)   1918E-880. 

5.  Waiver  of  Provisions. 

22.  Pleading — Departure. — An  insured  can- 
not declare  upon  the  policy  and,  when 
charged  by  the  insurer's  answer  with  short- 
comings, reply  that  such  omissions  were 
waived.  Waller  v.  New  York  Ins.  Co.  (Ore.) 
1918C-139. 

6.  Liability  Insurance. 

a.  Construction  of  Contract. 

23.  Indemnity  against  liability  for  malprac- 
tice.— Policy  insuring  against  loss  from  li- 
abilitj'  by  law  for  damages  on  account  of 
bodily  injuries  or  death  suffered  in  conse- 
quence of  error,  mistake,  or  malpractice  in 
assured's  profession  of  dentistry,  or  by  any 
assistant  of  the  insured  while  acting  under 
his  instructions,  is  neither  technical  nor  am- 
biguous, and  its  language  must  be  given  the 
legal,  natural,  and  ordinary  meaning.  Betts 
v.  Massachusetts  Bonding,  etc.  Co.  (N.  J.) 
1918E-520.  (Annotated) 

24.  Persons  entering  into  dentist's  indem- 
nity insurance  policy  will  be  presumed  to 
have  contracted  with  full  knowledge  of  the 
legal  effect  of  their  acts  under  the  laws  re- 
lating to  the  practice  of  dentistry.  Betts  v. 
Massachusetts  Bonding,  etc.  Co.  (N.  J.) 
1918E-520.  (Annotated) 

25.  An  insurer,  issuing  an  indemnity  pol- 
icy to  a  dentist  to  protect  him  in  actions  for 
his  alleged  malpractice,  may  rely  on  the  full 
performance  of  the  dentist's  duties  under  th« 
law.  Betts  v.  Massachusetts  Bonding,  etc. 
Co.  (N.  J;)   1918E-520.  (Annotated) 

26.  Malpractice  of  unlicensed  assistant. — 
A  dentist  cannot  recover  on  an  indemnity 
policy  for  a  claim  arising  from  malpractice 
of  his  assistant,  who  was  unlicensed  when 
in  the  application  he  held  his  assistant  out 
as  a  licensed  dentist.  Betts  v.  Massachusetts 
Bonding,  etc.  Co.   (N.  J.)   1918E-520. 

(Annotated) 

27.  Dentist's  indemnity  policy,  avoiding 
liability  for  any  claim  against  the  assured  or 
his  assistant  arising  from  violation  of  any 
law  or  ordinance  on  the  part  of  the  assured, 
creates  no  liability  for  a  claim  arising  from 
injuries  to  a  patient  from  an  unlicensed  and 
unregistered  assistant,  regardless  of  whether 
the  violation  of  law  was  the  permanent 
cause  of  the  injury.  Betts  v.  Massachusetts 
Bonding,  etc.  Co.   (N.  J.)   1918E-520. 

(Annotated) 

28.  Under  policy  indemnifying  dentist 
from  liability  for  alleged  malpractice  of  him- 
self or  assistant   while  acting  under  his  in- 


126 


A:x:s.  CAjS.  digest  (iyi8C-1918E). 


fetructions,  the  insurer  is  not  liable  for  a 
judgment  obtained  by  a  patient  who  was  op- 
erated on  and  injured  by  an  unregistered  and 
unlicensed  assistant  acting  in  violation  of 
the  dentisfs  instructions,  in  view  of  2 
Comp.  St.  1910,  pp.  1911,  1913,  1915,  §§  1,  8, 
and  12,  stating  the  requisites  of  practicing 
dentistry.  Betts  v.  Massachusetts  Bonding, 
etc.  Co.   (X.  J.)   1918E-520.  (Annotated) 

29.  That  such  assistant  was  duly  qualified 
in  another  state  does  not  maice  his  act  in 
practicing  in  New  Jersey  without  a  license 
and  without  registration  any  the  less  a  vio- 
lation of  law,  so  as  to  aflfect  the  case.  Betts 
V.  Massachusetts  Bonding,  etc.  Co.  (N.  J.) 
1918E-520.  (Annotated) 

30.  Employers'  liability  insurance — Power 
of  insurer  to  control  settlement. — Under  a 
policy  indemnifying  an  employer  for  injury 
to  an  employee  to  an  amount  not  exceeding 
$5,000  on  a  single  claim,  agreeing  to  pay  the 
expenses  incurred  in  defending  a  suit  against 
the  insured,  providing  that  no  action  could 
be  maintained  by  the  insured  against  the  in- 
surer unless  begun  to  recover  a  loss  defined 
by  the  policy  after  final  judgment  rendered 
in  an  action  by  the  injured  employee  against 
the  insured  employer,  jn  which  the  insured 
agreed  not  to  voluntarily  assume  any  liabil- 
ity nor  interfere  in  any  negotiations  or  legal 
proceedings  conducted  by  the  insurer,  nor, 
except  at  its  own  expense,  to  settle  any 
claim  or  to  incur  any  expense  without  the 
consent  of  the  insurer,  except  for  imperative 
surgical  relief,  and  in  which  the  insurer  re- 
served the  right  to  settle  any  claim  or  suit, 
the  insurer  did  not  obligate  itself  to  settle  a 
claim  which  could  be  settled  for  $5,000  or 
less,  and  so  relieve  the  insured  of  liability; 
and  hence,  where  the  insured  sufi'ered  a  judg- 
ment for  $12,500  and  the  insurer  contributed 
$5,000,  the  insured  cannot  recover  the  bal- 
ance of  $7,500  which  he  was  required  to  pay 
in  satisfaction  of  the  judgment.  Wisconsin 
Zinc  Co.  v.  Fidelity,  etc.  Co.  (Wis.)  1918C- 
399.  (Annotated) 

31.  Under  such  policy,  the  insurer  is  not 
made  the  agent  of  the  insured  for  the  pur- 
pose of  making  a  settlement,  but  has  the 
right  to  consider  its  own  interests  as  para- 
mount to  those  of  the  insured,  and  to  decide 
whether  they  will  be  best  subserved  by  set- 
tling or  contesting  the  claim;  and  hence 
there  can  be  no  breach  of  such  duty  so  as  to 
lay  a  foundation  for  the  insured's  action  in 
tort  for  the  insurer's  failure  to  settle  with- 
out trial.  Wisconsin  Zinc  Co.  v.  Fidelity, 
etc.   Co.    (Wis.)    1918C-399.  (Annotated) 

32.  Under  such  policy,  there  is  no  liability 
on  the  part  of  the  insurer  until  a  judgment 
is  recovered  by  an  employee  and  paid  by'the 
insured.  Wisconsin  Zinc  Co.  v.  Fidelity,  etc. 
Co.   (Wis.)   1918C-399.  (Annotated) 

33.  In  such  a  policy  the  parties  have  s. 
right  to  insert  such  provisions  as  they  see 
fit  so  long  as  they  do  not  contravene  public 
policy,  and  the  provision  that  the  insurer 
shall  have  the  exclusive  right  to  settle 
claims,  which  right  may  in  good  faith  be  ex- 
ercised to  its  full  extent  by  the  insurer  for 


its  own  benefit  and  advantage,  is  valid.  Wis- 
consin Zinc  Co.  V.  Fidelity,  etc.  Co.  (Wis.) 
1918C-399.  (Annotated) 

34.  As  to  such  policies,  the  courts  have  no 
power  to  add  or  subtract  anything  from  the 
contract  actually  made,  but  must  so  inter- 
pret it  as  to  carry  out  the  intention  of  the 
parties.  Wisconsin  Zinc  Co.  v.  Fidelity,  etc. 
Co.     (Wis.)     1918C-399.  (Annotated) 

35.  Where  the  insurer  in  a  casualty  policy 
assumes  the  duty  of  defending  and  negli- 
gently breaches  such  duty,  the  insured  has  a 
remedy.  Wisconsin  Zinc  Co.  v.  Fidelity,  etc. 
Co.    (Wis.)    1918C-399.  (Annotated) 

36.  Under  a  policy  indemnifying  an  em- 
ployer against  loss  from  personal  injury  to 
his  employees,  wherein  the  insurer  agieed  to 
defend,  in  the  name  and  on  behalf  of  the  in- 
sured, any  suit  against  the  insured  for  dam- 
ages on  account  of  personal  injury  to  liis  em- 
ployees, and  reserved  the  right  to  settle  any 
claim  or  suit,  and  wherein  the  insured  agreed 
not  to  voluntarily  assume  any  liability,  or  to 
interfere  with  proceedings  conducted  by  the 
insurer-  or  to  settle  any  claim,  the  power  of 
settlement  given  to  the  insurer  may  not  be 
used  for  the  purpose  of  fraud  or  oppression 
or  be  exercised  in  bad  faith.  Wisconsin  Zinc 
Co.  V.  Fidelity,  etc.  Co.   (Wis.)   1918C-399. 

(Annotated) 

b.  Actions. 

37.  Allegations  of  bad  faith  of  insurer.— > 
Allegations  of  a  complaint,  in  an  action  by 
an  employer  insured  under  a  policy  indemni- 
fying him  for  loss  from  personal  injury  to 
his  employees,  that  the  insurer  knew  the  haz- 
ards attending  litigation  against  an  employ- 
er and  the  liability  of  suffering  a  large  judg- 
ment, that  it  was  bound  to  settle  a  claim 
before  trial,  and  that,  instead  of  acting  on  be- 
lialf  of  the  insured,  it  acted  in  its  own  inter- 
ests and  in  bad  faith  toward  the  insured, 
and  failed  to  settle,  whereby  a  larger  judg- 
ment was  obtained,  requiring  the  insurer  to 
pay  the  maximum  of  the  claim  and  the  in- 
sured to  pay  the  excess  of  the  judgment,  lib- 
erally construed  on  demurrer,  and  in  view  of 
the  failure  to  move  to  make  it  more  definite 
and  certain,  sufficiently  allege  bad  faith. 
Wisconsin  Zinc  Co.  v.  Fidelity,  etc.  Co. 
(Wis.)    1918C-399.  (Annotated) 

39.  Declaring  on  "binder." — Where  the  pe- 
tition discloses  that  ad  interim  employers' 
liability  insurance  was  issued  for  ten  days 
from  the  date  of  the  '^binder"  and  "pending 
the  issue  of  a  regular  policy  at  the  rate  and 
subject  to  limits  of  liability  stated  therein, 
and  subject  also  to  the  agreements  and  con- 
ditions of  the  policy  form  E.  L.  20,  .  - .  . 
as  issued  by  this  company,  .  .  ."  and  the 
plaintiff  declares  upon  the  "binder"  alone, 
without  setting  forth  the  policy  subsequent- 
ly issued  pursuant  to  the  terms  of  the  '"bind- 
er," and  declaring  thereupon  as  a  part  of  the 
contract  of  insurance,  a  demurrer  to  the  pe- 
tition should  be  sustained.  Aetna  L.  Ins. 
Co.  V.  Bradford  (Okla.)   1918C-373. 

(Annotated) 


INSUfiAXCE. 


127 


7.  Automobile  Insurance. 

39.  Liability  insurance. — Plaintiff  having 
been  run  down  and  injured  by  defendant's 
motorcar,  and  defendant  having  a  policy 
protecting  him  from  loss,  after  recovering 
judgment  brought  proceedings  to  reach  and 
apply  the  insurance  money  to  the  satisfac- 
tion of  the  judgment.  The  policy  declared 
that  it  did  not  cover  loss  from  liability  for 
any  suit  based  on  injuries  or  death,  caused 
while  the  motorcar  was  being  driven  by  any 
person  under  the  age  of  sixteen  years.  The 
court  found  that  a  sou  of  defendant  under 
sixteen  years  of  age  had  been  driving  the  car; 
but  that  just  previous  to  the  accident  de- 
fendant took  the  wheel  from  his  son,  telling 
him  to  get  out  of  the  way,  and  thereafter 
the  son  did  nothing  other  than  to  sound  the 
horn.  It  is  held  that  even  though  defendant 
was  found  not  to  have  been  in  a  position  fa- 
vorable to  the  operation  of  the  car,  yet  as 
he  was  the  dominating  mind  and  had  re- 
moved his  son,  the  accident  was  one  falling 
within  the  policy.  AVilliams  v.  Nelson 
(Mass.)   1918D-U38.  (Annotated) 

40.  Rights  of  injured  person  against  in- 
surer.— Under  St.  1914,  c.  464,  permitting  a 
judgment  creditor  of  one  insured  by  contract 
of  casualty  policy  against  loss  or  damages 
on  account  of  boily  injury  or  death  by  acci- 
dent arising  from  causes  from  which  the 
insured  is  responsible  to  proceed,  having  re- 
covered judgment  for  a  cause  covered  by  the 
contract  of  insurance  in  equity  against  the 
insured  and  insurer  to  apply  insurance 
money  to  the  satisfaction  of  the  judgment; 
one  run  down  by  insmed's  motorcar  may, 
having  recovered  judgment  against  him,  pro- 
ceed to  that  extent  against  the  insurer,  it 
being  the  manifest  purpose  of  the  statute  to 
include  such  cases.  Williams  v.  Nelson 
(Mass.)   1918D-558. 

41.  Where  a  wife  was  run  down  and  in- 
jured by  the  motorcar  of  one  insured  against 
losses  resulting  from  the  operation  of  a  car, 
she  can,  under  the  statute,  compel  applica- 
tion of  the  insurance  money  to  the  satisfac- 
tion of  her  judgment,  but  the  husband,  who 
recovered  damages  for  the  injury  of  his  wife, 
cannot,  for  the  statute  is  expressly  limited 
to  a  judgment  for  "bodily  injury"  which  does 
not  include  the  husband's  financial  loss  or 
loss  of  consortium.  Williams  v.  Nelson 
(Mass.)   1918D-538. 

42.  St.  1914,  c.  464,  permitting  a  judgment 
creditor  of  one  insured  by  contract  of  casual- 
ty insurance  against  loss  on  account  of  bod- 
ily injury  of  any  person  from  causes  for 
which  the  insured  is  responsible  to  proceed 
in  equity  against  the  insured  and  insurer  to 
apply  the  insurance  money  to  satisfaction  oi 
judgment,  is  constitutional.  Williams  v. 
Ntlson    (Mass.)    1918D-538. 

43.  The  superior  court  has  jurisdiction  of 
a  petition  by  <i  judgment  creditor  of  one  in- 
sured by  contract  of  casualty  insurance  to 
reach  and  apply  under  St.  1914,  c.  464,  in- 
surance money  to  the  satisfaction  of  his 
judgment,  for  the  court  has  general  chancery 
jurisdiction,  and  Rev.  Laws,  c.  159,  §  3,  con- 
fers upon  it  jtu'isdiction  of  special  equitable 


suits  by  creditors  to  reach  and  apply  proper- 
ty of  a  debtor  which  cannot  be  attached  or 
taken  on  execution  in  actions  of  law.  Wil- 
liams V.  Nelson   (Mass.)   1918D-538. 

44.  The  exclusive  jurisdiction  in  equity 
conferred  upon  the  supreme  judicial  court  by 
Rev.  Laws,  c.  159,  §  2,  is  confined  to  matters 
not  within  the  general  principles  of  chancery 
jurisprudence,  and  hence  does  not  give  the 
supreme  judicial  court  jtu'isdiction  over  such 
proceeding.  Williams  v.  Nelson  (Mass.) 
1918D-538. 

8.  Credit  Insurance. 

45.  Failure  to  agree  on  terms  of  policy. — 

Where  all  the  negotiations  between  the 
agents  of  a  credit  insurance  company,  and 
per^sons  desirous  to  secure  insurance,  are  in 
anticipation  of  a  written  policy  or  policies 
to  be  issued,  which  policy  or  policies  are  not 
issued  because  the  parties  are  never  able  to 
agiee  on  terms,  no  oral  contract  of  insurance 
or  indemnity  is  made.  Cauman  v.  American 
Credit  Indemnity  Co.   (Mass.)   1918E-841. 

(Annotated) 

46.  Failure  of  insured  to  read  policy. — If 
an  applicant  for  credit  insurance  did  not  see 
fit  to  read  the  applications  or  the  conditions 
of  the  policies  to  which  the  applications  ex- 
pressly referred,  the  rights  of  the  parties  are 
not  to  be  affected;  there  having  been  noth- 
ing to  prevent  him  from  informing  himself 
of  their  contents,  if  he  desired.  Cauman  v. 
American  Credit  Indemnity  Co.  (Mass.) 
1918E-841.  (Annotated) 

47.  Refusal  to  accept  particular  risk. — 
When  a  credit  insurance  company  learns 
that  a  company  whose  account  was  sought 
to  be  insured  had  become  bankrupt,  it  has  a 
perfect  right  to  refuse  to  issue  any  policy  in- 
suring the  bankrupt  company's  account. 
Cauman  v.  American  Credit  Indemnity  Co. 
(Mass.)   1918E-841.  (Annotated) 

9.  Health  Insurance. 

48.  Validity  of  provisions. — A  condition  in 
a  policy  of  health  and  accident  insurance, 
voiding  it  for  nonpayment  of  premiums,  is 
Aalid  and  self-executing.  Rocci  v.  Massachu- 
-setts  Accident  Co.  (Mass.)  1918C-529. 

49.  A  stipulation  in  a  policy  of  accident 
and  health  insurance  tliat  there  can  be  no  re- 
covery except  during  continuous  confinement 
within  the  house  is  reasonable  and  valid, 
where  the  rate  of  premium  is  based  upon  the 
unlikelihood  of  such  confinraent.  Rocci  v. 
Massachusetts  Accident  Co.  (Mass.)  1918C- 
529.  (Annotated) 

50.  Conflict  between  policy  and  by-law. — 
Where  a  health  policy  provided  that  indem'- 
nity  shotild  be  paid  "in  one  sum,"  and  a  by- 
law provided  for  payment  "in  ten  annual  in- 
stalments," the  policy  will  prevail,  if  it  is 
within  the  power  of  the  association  under  its 
charter  or  articles  of  organization.  Eminent 
Household  of  Columbian  Woodmen  v.  Bunch 
(Miss.)  1918C-110. 

51.  What  constitutes  continuous  confine- 
ment to  house. — Where  a  policy  of  accident 
and    health    insurance    provided    that    there 


12S 


ANK  CAS.  DIGEST  U918C-1918Ej. 


should  be  no  liability  unless  the  insured  was 
<;ontiiiuou.sly  contined  to  the  house,  evidenc*; 
that  the  insured  stayed  two  weeks  in  his  own 
house,  went  to  his  sister's  house  and  stayed 
two  weeks,  went  to  the  city  hospital  for 
three  weeks  and  another  hospital  for  four 
weeks,  went  home,  went  to  a  town  several 
miles  away  and  entered  another  hospital, 
fails  to  show  liability  under  the  policy;  "con- 
tinuously," as  used  therein,  meaning  uninter- 
ruptedly, in  unbroken  sequence,  without  in- 
termission or  cessation,  and  without  inter- 
vening time,  and  "within  the  house"  mean- 
ing, in  the  absence  of  some  exigency,  within 
one  house.  Rocci  v.  Massachusetts  Accident 
Co.   (Mass.)   1918C-529.  (Annotated) 

52.  Excuse  for  nonpayment  of  premium. — 
Under  a  condition  in  a  policy  of  health  and 
accident  insurance  voiding  it  for  nonpay- 
ment of  premiums,  failure  to  pay  is  not  ex- 
cused by  illness  of  the  insured  before  the 
payment  was  due.  Rocci  v.  Massachusetts 
Accident  Co.   (Mass.)    1918C-529. 

53.  Proof  of  sickness. — Where  a  policy  of 
accident  and  health  insurance  required  proof 
of  sickness  to  be  made  within  thirty  daj's 
from  the  date  of  termination  of  the  disabil- 
ity, and  the  insured  made  a  claim  covering  a 
year's  disability  in  good  time,  but  the  claim 
was  valid  only  for  the  first  month,  failure 
to  give  the  notice  and  proof  within  thirty 
days  of  the  termination  of  the  liability  of 
the  company  did  not  forfeit  the  policy.  Roc- 
ci V.  Massachusetts  Accident  Co.  (Mass.) 
1918C-529. 


INTENT. 

To  violate  of  local  option  law,  see  Intoxicat- 
ing Liquors,  17. 


INTENT  TO  KIIX. 

Assault  with  intent  to  kill,  see  Assault,  1, 
2. 


INTEREST. 

In    estimating    compensation    for    taking    of 

land,  see  Eminent  Domain,  8. 
Liability    of    public    officer    for    interest    on 

money  in   his   hands,  see   Public  Offi- 

CEBS,    14. 
On  advancements,  see  Advancements,  2,  3. 
On  legacies,  see  Wills,  54,  55. 
On  unpaid  stock  subscriptions,  see  Cobpoba- 

TIONS,   34. 

1.  Validity  of  contract  provision  against 
interest. — A  provision  in  a  contract  of  insur- 
ance "that  in  any  action  at  law  or  equity, 
brought  to  enforce  the  collection  of  this  cer- 
tificate, or  any  amount  alleged  to  be  due 
thereunder,  claimant  or  claimants  shall  not 
be  entitled  to  receive  or  recover  interest  on 
the  amount  thereof,"  is  against  public  pol- 
icy and  will  not  be  enforced,  so  as  to  cut  off 
interest  from  a  judgment  duly  rendered 
against  the  company.    Such  a  provision  tends 


to  encourage,  promote,  and  prolong  litigation 
over  a  just  claim,  which  ought  not  to  be  lit- 
igated; therefore,  in  principle,  it  comes  un- 
der the  condemnation  of  the  law  relating  to 
champerty  and  maintenance.  Modern  Broth- 
erhood, etc.  V.  Bailey  (Okla.)  1918E-744. 

(Annotated) 


INTERNAL  REVENUE. 

Admissibility  of  evidence  of  possession  of 
federal  revenue  stamp,  in  prosecution 
for  illegal  sale  of  liquor,  see  Intoxicat- 
ing  LiQUOBS,   12. 

Admissibility  of  certificate  showing  grant  of 
license  in  prosecution  for  illegal  sale  of 
liquor,  see  Intoxicating  Liquobs,  10, 
11. 


INTERNATIONAL    LAW. 

See  Conflict  of  Laws. 

1.  Suit  against  foreign  government. — The 
bringing  of  an  action  by  a  foreign  nation  in 
a  court  of  the  United  States  to  recover  a  de- 
posit placed  to  its  credit  in  a  bank  is  not  a 
waiver  of  its  immunity  as  a  sovereign  from 
suit  by  other  parties,  and  the  court  is  with- 
out jurisdiction  to  permit  the  defendant  by 
interpleader  to  substitute  as  defendant  an- 
other party  claiming  a  lien  on  the  deposit  as 
a  creditor  of  the  palintiff,  but  who  alleges 
no  facts  which  would  make  it  a  trust  fund. 
Kingdom  of  Roumania  v.  Guaranty  Trust  Co. 
(U.  S.)    1918E-524.  (Annotated) 

2.  A  foreign  nation  at  war  which  makes 
contracts  in  the  United  States  for  supplies  or 
equipment  for  its  armies  does  not  thereby 
divest  itself  of  its  sovereign  character  and 
become  subject  to  suit  as  a  private  individ- 
ual. Kngdom  of  Roumania  v.  Guarantv 
Trust  Co.  (U.  S.)  1918E-524.         (Annotated) 


INTERSTATE    COMMERCE. 

E.xcise  tax  on  foreign  corporation  as  burden 
on  interstate  commerce,  see  Cobpoba- 
tions,  46. 

Taxing  income  produced  by  interstate  com- 
merce as  burden  on  interstate  commerce, 
see  Taxation,  59. 

1.  Power  of  states. — Where  commerce  is 
entirely  intrastate,  the  state's  power  to  reg- 
ulate is  exclusive.  Western  Union  Tel.  Co.  v. 
Lee  (Ky.)   1918C-1026. 

2.  Legislation  which  is  a  mere  aid  to  in- 
terstate commerce  may  be  enacted  by  a 
state,  although  it  may  incidentally  affect 
that  commerce.  Western  Union  Tel.  Co.  v, 
Lee   (Ky.)   1918C-1026. 

3.  Where  Congress  has  not  assumed  juris- 
diction over  a  given  .subject  of  commerce,  but 
may  do  so,  in  the  absence  of  congressional 
action,  a  state  may  exercise  its  police  power 
over  the  subject.  Western  Union  Tel.  Co.  v. 
Lee   (Ky.)   1918C-1026. 


INTERSTATE  COMMERCE  COM.— IXTOXICATI^'G  LIQUORS.   129 


4.  The  silence  of  Congress  on  a  subject  of 
commerce  over  which  it  has  jurisdiction,  and 
which  requires  uniform  regulation,  is  equiva- 
lent to  affirmative  legislation  that  such  sub- 
ject should  be  free  from  state  enactments. 
Western  Union  Tel.  Co,  v.  Lee  (Ky.)  1918C- 
1026. 

5-  Telegraph  lines  or  messages  as  inter- 
state commerce. — The  transmission  of  intelli- 
gence by  wire  is  "commerce."  Western  Union 
Tel.  Co.  V.  Boiling  (Va.)   1918C-1036. 

6.  Telegraph  lines  are  instruments  of  com- 
merce, and  messages  transmitted  over  such 
lines  constitute  a  portion  of  such  commerce 
Western  Union  TeL  Co.  v.  Lee  (Ky.)  1918C- 
1026. 

7.  A  telegraph  message  sent  from  one 
point  within  the  state  to  another  like  point, 
but  passing  through  part  of  another  state 
in  transit,  constitutes  '"interstate  commerce." 
Western  Union  Tel.  Co.  v.  Lee  (Ky.)  1918C- 
1026. 

8.  The  transmission  of  a  telegram  between 
two  points  within  the  state  over  a  line  which 

'  passes  out  of  the  state  and  requires  relaying 
the  message  outside  of  the  state  is  '"inter- 
state commerce."  Western  Union  Tel.  Co.  v. 
Boiling   (Va.)    1918C-1036. 

9.  Federal  control  over  telegraph  lines. — 
By  enactment  of  Act  Cong.  June  18,  1910, 
c.  309,  36  Stat.  544  (4  Fed.  St.  Ann.  2d  ed. 
337),  making  Interstate  Commerce  Act  Feb. 
4,  1887,  c.  104,  24  Stat.  379,  applicable  to 
interestate  telegraph  messages,  and  giving 
company  power  to  make  different  charges  for 
different  classes  of  messages.  Congress  in- 
tended to  take  control  of  the  entire  regula- 
tion of  interstate  telegraph  lines  to  the  ex- 
clusion of  state  regulation.  Western  Union 
Tel.  Co.  v.  Lee  (Ky.)  1918C-1026. 

(Annotated) 

10.  Exclusion  of  product  of  child  labor. — 
Act  Sept.  1,  1916,  c.  432,  39  Stat.  675  (Fed. 
St.  Ann.  Pamph.  Supp.  Xo.  8,  p.  137),  pro- 
hibiting the  transportation  in  interstate  com- 
merce of  the  products  of  mines  or  factories 
in  which  within  thirty  days  prior  to  removal 
children  under  the  age  of  fourteen  were  em- 
ployed, or  children  between  the  ages  of  four- 
teen and  sixteen  were  employed  or  permitted 
to  work  more  than  eight  hours  a  day  or 
more  than  six  days  in  any  week,  is  invalid, 
ahd  cannot  be  sustained  as  an  exercise  by 
Congress  of  its  power  to  regulate  commerce 
between  the  states,  for  the  products  of  child 
labor  are  in  themselves  inherently  harmless, 
for  the  act  instead  of  being  one  regulating 
commerce,  which  consists  of  intercourse  and 
traffic  and  includes  the  transportation  of  per- 
sons and  propety  as  well  as  the  purchase, 
sale,  and  exchange  of  commodities,  would 
serve  to  bring  under  federal  control  to  the 
practical  exclusion  of  the  authority  of  the 
states  all  manufacture  of  articles  intended 
for  interstate  shipment.  Hammer  v.  Dagen- 
hart  (U.  S.)  1918E-724.  (Annotated) 

11.  Such  act  cannot  be  sustained  on  the 
theory  that  Congress  has  power  to  control 
interstate  commerce  in  the  shipment  of  child- 
made  goods  because  of  the  effect  of  such 
goods  in  states  where  the  evil  of  child  labor 

Ann.  Cas.  Dig.  1918C-E.— 9. 


has  been  recognized  by  local  legislation  and 
the  right  to  employ  child  labor  has  been  more 
rigorously  restrained  than  in  the  state  of 
production.  Hammer  v.  Dagenhart  (U.  S.) 
1918E-724.  (Annotated) 

12.  Act  Sept.  1,  1916  (Fed.  St.  Ann. 
Pamph.  Supp.  No.  8,  p.  137),  attempting  to 
regulate  child  labor  in  the  states  by  prohibit- 
ing the  transportation  in  interstate  com- 
merce of  certain  child-made  goods,  is  invalid, 
being  an  invasion  of  the  powers  of  the  states, 
whose  inherent  power  to  regulate  their  own 
local  affairs  has  never  been  delegated  to  the 
general  government.  Hammer  v.  Dagenhart 
(U.  S.)   1918E-924.  (Annotated) 


INTERSTATE    COMMERCE    COMMIS- 
SION. 

Effect  of  filing  form  of  bill  of  lading  with 
commission,  see  Cabsiebs  of  Goods,  4. 


INTOXICATING  LIQUORS. 

1.  Licenses,  129. 

2.  Offenses: 

a.  Furnishing  Prescription.  130. 

b.  Importation  of  Liquor,  130. 

3.  Prosecutions: 

a.  Evidence: 

(1.)   Admissibility,  130. 
(2.)   Sufficiency,  130. 

b.  Instructions,  131. 
C.  Punishment,  131. 

Meaning  of  term  "liquor  saloon,"  see  Words 
A2JD  Phbases,  7. 

Refusal  of  license  as  releasing  liability  of 
lessee,  see  Landlord  and  Tenant,  7. 

Saloon  as  place  of  public  accommodation 
within  statute  forbidding  denial  of 
rights  on  account  of  race  or  creed,  see 
CrviL  Eights,  1,  2. 

Unlawful  sale  of  liquor  on  premises  as  bar- 
ring recovery  for  rent,  see  Landlobd 
and  Tenant,  12-15. 

1.  Licenses. 

1.  Injunction  against  grant  of  license. — A 
railroad  company  maintaining  a  passenger 
depot  is  held  on  the  evidence  to  sustain  such 
special  damage  from  the  sale  of  intoxicants 
immediately  adjacent  thereto  to  entitle  it  to 
sue  for  an  injunction  to  test  the  validity  of 
the  grant  of  a  license  at  that  location.  Carr 
v.  Washington,  etc.  R.  Co.  (D.  C.)  1918D- 
818. 

2.  The  right  to  certiorari  to  test  the  validi- 
ty of  the  grant  of  a  liquor  license' is  not  so 
clear  and  plain  as  to  preclude  resort  to  a 
suit  for  an  injunction  for  that  puruose.  Carr 
v.  Washington,  etc.  R.  Co.  (D.  O.)  1918D- 
818. 

8.  The  right  to  prosecute  criminally  a  per- 
son to  whom  a  liquor  license  has  been  granted 
illegally  does  not  preclude  relief  by  injunc- 
tion to  a  person  sustaining  special  damage 
from   the   sale   of    liquor   under   the   license. 


180 


AN2^.  CAS.  DIGEST  (1918C-1918E). 


Carr    v.    Washington,    etc.    R.    Co.    (D.    C.) 
1918D-818. 

2.  Offenses. 

a.  Furnishing  Prescription. 

4.  Construction  of  statute. — Laws  1905,  c. 
123,  §  1,  providing  that  it  shall  be  unlawful 
for  any  physician  to  furnish  a  prescription 
for  any  kind  of  intoxicating  liquors  to  be 
used  as  a  beverage,  or  for  any  purpose  except 
for  medicinal  purposes  in  case  of  actual  sick- 
ness, applies  only  to  cases  where  the  applica- 
tion for  the  prescription  is  made  by  some 
one  other  than  the  person  alleged  to  be  ill. 
Staite  V.  Morton  (S.  D.)   1918E-913. 

(Annotated) 

5.  Who  is  "patient,"— Laws  1905,  c.  123, 
§  2,  making  it  unlawful  for  any  physician  to 
furnish  any  person,  a  preecription  for  any  kind 
of  intoxicating  liquors  except  to  patients  of 
such  physician,  where  the  patient  is  afflicted 
with  some  disease  and  his  condition  is  such 
that  in  the  opinion  of  the  physician,  the  tak- 
ing of  intoxicating  liquors  would  be  benefi- 
cial, applies  where  a  person  himself  seeks  the 
advice  of  the  physician  and  states  his  ail- 
ments, and  such  person  is  a  "patient,"  within 
the  meaning  of  the  act.  State  v.  Morton 
(S.  D.)   1918E-913.  (Annotated) 

6.  Good  faith. — In  prosecution  of  physician 
for  furnishing  prescription  for  intoxicating 
liquors  imder  Laws  1905,  c.  123,  the  essence 
is  whether  or  not  a  physician  acted  in  good 
faith  in  giving  the  prescription  to  his  patient. 
State  V.  Morton  (S.  D.)  1918E-913. 

(Annotated) 

7.  Burden  of  proof. — ^In  prosecution  under 
Laws  1905,  c.  123,  against  physician  for  fur- 
nishing prescription  for  intoxicating  liquors 
to  a  patient,  the  burden  of  proof  is  upon  the 
state  to  show  beyond  a  reasonable  doubt  a 
violation  of  the  statute.  State  v.  Morton 
(S.  D.)  1918E-913.  (Annotated) 

b.  Importation    of   Liquor. 

8.  What  constitutes. — Intoxicating  liquors 
are  introduced  into  the  state,  within  Const, 
art.  23,  §  1,  providing  that  intoxicating  liq- 
uors shall  not  be  introduced  into  the  state 
under  any  pretense,  when  the  liquors  have 
been  intentionally  transported  into  the  state 
as  a  result  of  a  transaction  set  on  foot  by  a 
single  impulse,  and  operated  by  an  uninter- 
mittent  force,  no  matter  how  long  a  time  it 
may  occupy,  nor  the  distance  over  which  it 
may  be  exerted,  either  within  or  without  the 
state,  so  long  as  the  transaction  results  in 
bringing  the  liquor  within  the  territorial 
jurisdiction  of  the  state.  Reynolds  v.  State 
(Ariz.)    1918D-879.  (Annotated) 

9.  Where  offense  committed. — The  offense 
of  introducing  liquors  into  the  state  is  not 
completed  till  they  reach  their  destination, 
but  the  offense  is  committed  in  every  portion 
of  the  state  over  which  they  are  transported, 
and  if  the  route  is  in  part  in  one  county,  and 
in  part  in  another,  the  offense  is  committed 
in  part  in  each  county,  and  may  be  prosecuted 
in  either  county  under  Pen.  Code  1913,  par. 


812,  providing  that  when  a  public  offense  is 
committed  in  part  in  one  county  and  in  part 
Ih  another,  or  the  acts  or  effects  thereof  req- 
uisite to  consummation  of  the  offense  occur 
in  two  or  more  counties,  the  jurisdiction  shall 
'be  in  either  county.  Reynolds  v.  State 
(Ariz.)   1918D-879.  (Annotated) 

3.  Prosecutions. 

a.  Evidence. 

(1)  Admissibility. 

10.  Certificate    showing    federal    license-. — 

The  provisions  of  the  Act  Xo.  40  of  1908 
that,  in  all  criminal  prosecutions  for  the 
oft'ense  of  retailing  intoxicating  liquor  in  vio- 
lation of  law,  the  state  may  introduce  in 
evidence,  in  support  of  the  charge,  a  certifi- 
cate from  the  internal  revenue  collector  show- 
ing that  a  United  States  internal  revenue 
license  or  permit  was  issued  to  the  person  on 
trial,  and  that  such  certificate  shall  be  prima 
facie  evidence  that  the  person  is  guilty  of  ^ 
the  offense  of  retailing  intoxicating  liquor 
in  violation  of  law,  is  unconstitutional  and 
invalid,  because  it  contravenes  the  provision 
in  article  9  of  the  constitution  of  this  state 
that  "the  accused  in  every  instance  shall  have 
the  right  to  be  confronted  with  the  witnesses 
against  him."  State  v.  Wilson  (La.)  1918D- 
789.  (Annotated) 

11.  A  certified  copy  of  a  record  kept  in  the 
oflSce  of  the  collector  of  internal  revenue  is 
not  what  the  Act  No.  40  of  1908  provides 
shall  be  admissible  in  evidence  in  a  prosecu- 
tion for  retailing  intoxicating  liquor  in  vio- 
lation of  law  and  be  prima  facie  evidence  of 
th^  guilt  of  the  party  accused.  A  certified 
copy  of  such  a  record  would  not,  of  itself, 
prove  that  anyone  had  sold  intoxicating  liq- 
uor, and  would  not  alone  justify  the  convic- 
tion of  a  person  accused  of  selling  intoxicat- 
ing liquor  in  violation  of  law.  State  v.  Wil- 
son (La.)  1918D-789.  (Annotated) 

12.  Possession  of  federal  revenue  stamp. — 
Under  Local  Option  Law,  §  17  (Kurd's  Rev. 
St.  1913,  c.  43,  §  41),  a  certified  copy  of  in- 
ternal revenue  special  tax  stamp  is  admis- 
sible, though  with  no  evidence  of  posting, 
to  show  the  character  of  the  liquor  sold. 
People  V.  Brown   fill.)   1918D-772. 

13.  Copies  of  waybills. — In  a  prosecution 
for  illegal  liquor  selling,  copies  of  original 
waybills  are  competent  as  original  evidence 
where  such  copies  are  signed  as  receipts  by 
defendant,  who  was  not  only  an  individual 
dealer,  but  also  an  express  company.  People 
V.  Brown   (111.)  1918D-772. 

2.  Sufficiency. 

14.  The  evidence  is  held  to  be  insufficient 
to  show  that  accused  issued  a  prescription 
for  intoxicating  liquors  intended  to  be  used 
as  a  beverage  in  violation  of  Laws  1905,  c 
123.     State  v.  Morton   (S.  D.)   1918E-913. 

15.  Proof  of  corpus  delicti. — The  corpus 
delicti  of  the  offense  of  introducing  liquor  in- 
to the  state  may  be  established  by  circum- 


INTOXICATION^— JUDGMENTS. 


131 


stantial  evidence.     Reynolds  v.  State   (Ariz.) 
1918D-879.  ^Annotated) 

16.  In  a  prosecution  for  introducing  liquor 
into  the  state,  evidence  held  sufficient  to 
establish  the  corpus  delicti,  independent  of 
admissions  and  statements  by  accused.  Rey- 
nolds V.  State  (Ariz.  J   1918D-879. 

(Annotated) 

b.  Instructions. 

17.  As  to  Intent. — ^Aa  instruction  that  it 
was  aot  necessary  to  prove  defendant  know- 
ingly and  wilfully  violated  the  Local  Option 
Law,  but  only  that  he  did  violate  it,  is  not 
objectionable.  People  v.  Brown  (111.)  1918D- 
772, 

18.  As  to  purpose  of  importation. — In  a 
prosecution  for  introducing  liquor  into  the 
state,  a  charge  that  under  the  law,  if  the 
evidence  warrants  it,  the  jury  may  find  de- 
fendant guilty,  for  any  person  who  intro- 
duces into  the  state  any  ardent  spirits,  etc., 
shall  be  guilty  of  a  misdemeanor,  is  not  ob- 
jectionable as  requii-ing  the  jury  to  convict 
even  if  the  liquor  were  introduced  for  a  law- 
ful purpose,  where  no  issue  as  to  the  purpose 
of  introducing  the  liquor  was  raised  at  the 
trial.    Reynolds  v.  State  (Ariz.)  1918D-  879. 

(Annotated) 

19.  In  a  prosecution  for  introducing  liquor 
into  the  state,  the  defendant  could  suffer  no 
injury  from  the  failure  to  instruct  as  to  the 
defense  of  lawful  purpose  of  the  introduc- 
tion, when  the  purpose  he  was  shown  to 
have  admitted  was  unlawful.  Reynolds  v. 
State   (Ariz.)    1918D-879.  (Annotated.) 

c.  Punishment. 

20.  Sentence  not  excessive. — Where  de- 
fendant was  active  in  peddling  blank  orders 
and  ordering  and  delivering  beer  in  viola- 
tion of  the  Local  Option  Law,  a  sentence  of 
$75  and  fifteen  days  imprisonment  on  each  of 
eight  counts  and  $100  and  fifty  days  on  an- 
other count  is  within  the  discretion  of  the 
court.     People  v.  Brown  (in.)   1918D-772. 


INTOXICATION. 

As  affecting  voidability  of  contract,  see  CoN- 

TBAOTS,    1. 


INVXTEE. 

Duty   owed   to   invitee   in   store,   see  Negli- 
gence, 1. 


IRRIGATION. 

Liability  of  state  for  damages  caused  by  neg- 
ligent operation  of  irrigation  system, 
see  States,  7. 


ITKMIZED  STATEMENT. 

itemized  statement  of  account  as  evidence, 
see  Accounts,  3,  4. 


JEOPARDY. 

See  FoxtiEB  JnopABDr. 

JITNEYS. 

See  Cabbiebs  of  Passbnoebs,  19,  20. 

JOINT   TENANTS. 

See  Tenants  in  Common, 

JOINT    TORTFBASORS. 

Release  of  joint  tortfeasor,  see  Release  AWB 
DiSCHABQE,    2-7. 

Injuries  resulting  from  maintenance  of  wires 
in  proximity  to  those  of  another  com- 
pany, see  Electbicitt,  10. 

JTTDGES. 

See  CotJBTS;  Justices  of  the  Peace. 
Affidavit  of  judge  to  supplement  record  on 
appeal,  see  Appeal  and  Ebbob,  23. 

1.  Term  as  including  justice  of  the  peace. 
— Within  Const,  art.  7,  §§  1,  2,  as  amended 
November  8,  1910,  providing  that  the  judicial 
power  shall  be  vested  in  the  supreme  court 
and  such  other  cotirts  as  may  be  created  by 
law,  that  the  judges  thereof  shall  be  elected 
for  six  years,  and  that  the  courts  and  judi- 
cial system,  except  as  expressly  changed  by 
the  amendment,  shall  remain  as  at  present 
till  otherwise  provided,  a  justice's  court  is  a 
"court"  and  a  justice  of  the  peace  a  "judge;" 
the  original  sections  providing  for  justices  of 
the  peace  with  limited  judicial  powers.  Web- 
ster V.  Boyer   (Ore.)   1918D-988. 

(Annotated) 


INVOICE   VALUE. 

Definition,  see  Wobds  and  Phrases,  5. 

IRON   SAFE   CI.A1JSE. 

See  P^be  iNstTiANCK,   10-13. 


JUDGMENTS. 

1   Requisites  and  Validity  in  General,  132. 

2.  Conformity  to  Pleadings,  132. 

3.  Judgment  Non  Obstante  Veredicto,  132. 

4.  Judgment  on  Pleadings,  132. 

5.  Lien,  132. 

e.  Default  Judgment,  132. 


132 


AI^N.  CAS.  DIGEST   (1918C-1918E). 


7.  Res  Judicatt:  iTAi>ia). 

a.  In  General,  133. 

b.  Persons  Concluded,    133. 

8.  Collateral  Attack,  133. 

Construction  of  evidence  in  motion  for  non- 
suit or  for  judgment  non  obstante  vere- 
dicto,  see  DisMissAT>  and  Nonsuit,   3. 

Pecision  or  judgment  of  appellate  court,  see 
Appeal  and  Error,  104-110. 

Default  judgment  in  justices  court,  see  Jus- 
tices OF  THE  Peace,  1-4. 

EflFeot  of  decree  of  annulment,  see  Marriage, 
15. 

Effect  of  judgment  against  garnishee  as 
against  principal  defendant,  see  Gar- 
nishment, 3. 

Effect  on  attachment  of  failure  to  docket 
judgment  in  lien  docket,  see  Attach- 
ment, 6. 

Faith  and  credit  of  foreign  judgment,  see 
Conflict  of  Laws,  5. 

Finality  of  decree  for  distribution,  see  Ex- 
ecutors   AND    AcMINISTBATOBS,    16. 

In  quo  warranto  proceedings,  see  Quo  War- 
ranto, 7-9. 

Lien  of  attorney  on  judgment,  see  Attor- 
neys,  14-16. 

Matters  concluded  by  judgment  of  dismis- 
sal of  amended  complaint,  see  Pleading, 
22. 

Satisfaction  of  judgment  for  libel  as  barring 
suit  against  persons  jointly  liable,  see 
Libel  and  Slander,  34,  35* 

Setting  aside  decree  for  distribution,  see  Ex- 

ECtlTORS    AND    ADMINISTRATORS,    17-20. 

Settlement  of  judgment  in  violation  of  at- 
torney's lien,  see  Attorneys,  15,  16. 

Summary  judgment  against  surety  in  in- 
junction bond,  see  Injunctions,  22,  23. 

Validity  of  judgment  against  partners  in 
action  against  firm,  see  Partnership,  5. 

1.   Requisites   and  Validity   in   General. 

1.  Personal  decree. — ^Where,  in  a  suit  to 
collect  a  debt  secured  by  an  alleged  lien  on 
land,  the  existence  of  the  debt  is  established, 
but  the  lien  is  not,  it  is  error  to  dismiss 
plaintiff's  suit  without  a  personal  decree 
against  the  debtor.  Linn  v.  Collins  (W.  Va.) 
1918C-86. 

2.  Conformity  to   Pleadings. 

2.  Under  Rev.  Code,  §  186,  providing  that 
the  relief  granted  to  a  plaintiff,  if  there  is 
no  answer,  shall  not  exceed  that  which  he 
has  demanded  in  his  complaint,  but  that  in 
other  cases  the  court  may  grant  him  any 
relief  consistent  with  the  case  made  by  the 
complaint  and  embraced  within  the  issue, 
a  party  is  entitled  to  such  relief  as  his  evi- 
dence, together  with  the  facts  averred  in 
his  pleadings,  justify,  regardless  of  the  re- 
lief demanded  in  his  praver.  Jones  v.  Cerea 
Invest.   Co.    (Colo.)    1918C-429. 

3.  In  such  case  the  sufficiency  of  the  repli- 
cation should  have  been  tested  by  derrturrer, 
so  that,  if  bad,  plaintiff  would  have  an  op- 
portunity to  amend,  which  was  denied,  by 
sustaining  the  motion   for  judgment  on  the 


pleadings.    Jones  v.  Ceres  Invest.  Co.  (Colo.) 
1918C-429. 

3.  Judgment    Non    Obstante    Veredicto. 

4.  Direction  of  verdict  improperly  refused. 
— ^Where  defendant  under  the  pleadings  is 
entitled  to  a  directed  verdict,  but  its  motion 
is  denied,  it  is  not  entitled  to  judgment  ou 
motion  therefor  notwithstanding  the  verdict. 
Lancaster  Electric  Light  Co.  v.  Taylor  (Ky.)  ( 
1918C-591. 

4.  Judgment  on  Pleadings. 

5.  Demurrable  defects. — Rev.  Code,  §  53, 
declares  that  the  sufficiency  of  the  pleadings 
shall  be  determined  as  prescribed  in  the  act 
and  not  otherwise;  and  section  55  provides 
that  the  complaint  shall  contain  a  statement 
of  the  facts  constituting  the  cause  of  ac- 
tion and  a  demand  for  the  relief  claimed. 
In  an  action  for  damages  for  breach  of  a 
contract  to  convey  land,  setting  forth  the 
alleged  cause  of  action,  to  which  a  de- 
murrer was  overruled,  the  answer,  denying 
many  allegations  of  the  complaint,  alleged 
that,  when  he  made  the  contracts,  plaintiff 
knew  that  defendant  owned  the  land,  that 
the  contracts  were  those  of  a  certain  named 
person,  that  defendants  name  was  not  men- 
tioned therein,  and  that  such  person  was  not 
its  agent,  which  allegations  were  denied  by 
the  replication,  except  the  allegation  that 
plaintiff,  when  he  made  the  contract  with 
such  person,  knew  that  the  lots  belonged  to 
defendant,  and  that  its  name  was  not  re- 
ferred to  in  the  contract.  It  is  held  that 
the  granting  of  defendant's  motion  for  judg- 
ment on  the  pleadings  was  improper,  as  a 
motion  therefor  cannot  take  the  place  of  ■  a 
general  demurrer,  and,  unless  the  pleadings 
show  affirmatively  that  plaintiff  is  without 
right,  should  not  be  entertained.  Jones  v. 
Ceres  Invest.  Co.    (Colo.)    1918C-429. 

5.   Lien. 

6.  Against  community  property. — A  judg- 
ment against  the  maker  of  a  bond,  guar- 
anteeing a  debt  to  plaintiff,  binds  the  com- 
munity property  of  the  maker  and  his  wife. 
Union  Securities  Co.  v.  Smith  (Wash.) 
1918E-710. 

7.  Limitation  to  interest  of  debtor. — Rule 
followed  that  an  attaching  or  judgment 
creditor  cannot  subject  to  the  satisfaction  of 
his  claim  or  judgment  any  greater  interest 
in  propertv  than  that  owned  by  the  debtor. 
Saylor   v. 'Crooker    (Kan.)    1918D-473. 

8.  Where  a  debtor  holds  only  the  naked  le- 
gal title  to  property,  and  that  title  was  vest- 
ed in  him  only  as  a  mortgagee,  and  the  mort- 
gage itself  was  unenforceable  and  void,  an 
attaching  or  judgment  creditor  cannot  sub- 
ject such  property  to  the  payment  of  the 
debts  or  judgment  liabilities  of  the  debtor. 
Saylor  v.  Crooker  (Kan.)  1918D-473. 

6.  Default  Judgments. 

9.  Opening  default. — Order  opening  de- 
fault judgment  in  suit  for  pei'sonal  injuries 


JUDICIAL  JsTOTICE— JUDICIAL  SALES. 


133 


against  employers  is  held  to  be  well  within 
the  trial  court's  discretion;  it  appearing  that 
defendants  relied  upon  defense  being  made 
by  their  liability  insurance  company.  Sam- 
pler V.  Goemann   (Wis.)   1918C-670. 

7.  Res  Judicata. 

a.  In  General. 

10.  Identity  of  cause  of  action. — To  sus- 
tain a  plea  of  res  adjudicata,  the  evidence 
must  show  that  the  cause  of  action  is  the 
same.  Eminent  Household  of  Columbian 
Woodmen   v.   Bunch    (Miss.)    1918C-110. 

11.  An  action  for  permanent  total  dis- 
ability, in  which  it  was  determined  that  the 
plaintiff  was  not  totally  disabled,  and  was 
acting  as  a  justice  of  the  peace,  is  not  a 
bar  to  a  later  action  tor  disability  at  a 
later  date  when  he  was  not  acting  as  a  jus- 
tice, and  the  infirmities  were  the  same, 
except  that  they  had  grown  worse.  Eminent 
Household  of  Columbian  Woodmen  v.  Bunch 
(Miss.)   1918C-110. 

12.  Immaterial  differences  in  facts.— 
Judgment  for  a  landowner  in  her  suit  against 
a  railroad  for  damages  to  her  land  by  the 
negligent  construction  of  the  railroad  over 
a  water  course  near  the  land,  which  changed 
the  stream's  course  and  caused  the  land  to 
overflow,  is  conclusive  in  the  landowner's 
subsequent  suit  for  damages  from  the  same 
cause,  though  the  parties  stipulated  that 
since  the  first  suit  there  was  an  addition  to 
the  road's  trestle,  and  an  enlargement  of  the 
passage  for  Avater;  the  landowner's  proof 
showing  that  the  change  did  not  lessen,  pre- 
vent, or  in  any  manner  affect  the  overflow 
caused  by  the  road's  negligence  in  construct- 
ing its  railway  so  as  to  cause  a  sudden  chang- 
ing of  the  course  of  the  stream  near  her 
land.     Bush  v.  Stephens   (Ark.)    1918E-259. 

13.  Matters  concluded. — In  an  action  to 
cancel  deeds  and  set  aside  registration  of 
land  under  Laws  1903,  p.  311,  the  trial  court 
properly  declines  to  consider  the  regularity 
of  the  original  tax  deed,  or  the  evidence  pre- 
sented in  a  case  in  which  the  title  was  at- 
tempted to  be  quieted,  because  the  decree, 
etc.,  in  the  quieting  title  action  are  mat- 
ters of  evidence  upon  which  the  trial  court 
acted  in  the  registration  suit,  and,  the  pro- 
ceedings in  the  registration  suit  being  regular, 
the  trial  court  in  the  instant  suit  is  not  at 
liberty  to  pass  upon  the  sufl&ciency  of  the 
evidence  upon  which  the  decree  of  registra- 
tion was  based.  White  v.  Ainsworth  (Colo.) 
1918E-179. 

14.  Necessity  of  judgment. — Without  a 
judgment  the  plea  of.  res  adjudicata  has  no 
foundation  and  neither  the  verdict  of  a 
jury  nor  the  findings  of  a  court  or  referee, 
even  though  in  a  prior  action  upon  the 
])recise  point  involved  in  a  subsequent  action 
and  between  the  same  parties,  constitute  a 
bar.  Albright  v.  Albright  (N.  Mex.)  1918B- 
542. 

b.  Persons  Concluded. 

15.  Suit  in  different  capacity. — ^A  party 
is  bound  by  and  may  plead  the  conclusive- 


ness of  a  former  judgment  only  in  the 
same  capacity  in  which  he  was  a  party  to 
it.  Henry  v.  Missouri,  etc.  R.  Co.  (Kan.) 
1918E-1094. 

16.  A  judgment  against  one  in  an  indi- 
vidual capacity  is  not  a  bar  to  a  claim  which 
is  asserted  by  him  in  a  representative  ca- 
pacity, or  as  the  successor  in  interest  to  a 
corporation  which  was  not  precluded  by  the 
original  judgment,  ilurphy  v.  Wilson  (N. 
D.)   1918E-1101.  (Annotated) 

17.  A  judgment  in  favor  of  a  minor  in  an 
action  brought  in  his  behalf  by  his  father 
as  guardian  or  next  friend,  to  recover  for  per- 
sonal injuries  resulting  from  the  negligence 
of  his  employer,  is  not  conclusive  or  binding 
against  the  defendant  in  another  action 
brought  by  the  father  in  his  own  right  to  re- 
cover for  loss  of  the  son's  services.  Henry 
v.  Missouri,  etc.  R.  Co.  (Kan.)  1918E-1094. 

(Annotated) 

8.  Collateral  Attack. 

18.  An  erroneous  decree,  not  void  for  want 
of  jurisdiction,  is  not  subject  to  collateral 
impeachment.  Linn  v.  Collins  (W,  Va.) 
1918C-86. 


JUDICIAL  NOTICE. 

See  Evidence,  1-5. 

As  to  untruth  of  allegations  regarding  ren- 
dition of  services,  in  action  for  death  of 
child,  see  Death  by  Weonoful  Act,  19. 


JUDICIAL   SALES. 

Injunction    against    execution    sale,    see   In- 
JUXCTiONS,  5-9,  16,  17,  19,  20. 

1.  Rights  of  purchaser — Defect  in  return. — 
A  purchaser  at  a  sheriff's  sale  under  a  mort- 
gage foreclosure,  who  pays  the  price  and  re- 
ceives a  deed  from  the  sheriff,  is  not  preju- 
diced because  the  sheriff  makes  an  imperfect 
return  or  makes  no  return  at  all.  Wolfen- 
berger  v.  Hubbard   (Ind.)   1918C-81. 

2.  Wliere  the  return  of  a  sheriff  making  a 
sale  under  mortgage  foreclosure  is  silent  as 
to  some  matter  imposed  on  Ijim  in  connection 
with  the  sale  to  which  the  return  relates,  it 
will  be  presumed  that  the  officer  did  his  duty, 
and  it  is  not  error  to  admit  evidence  con- 
firming the  presumption.  Wolfenberger  v. 
Hubbard   (Ind.)   1918C-81. 

3.  Effect  of  notice  of  previous  user  of 
land. — Where  defendant  purchased  land  at 
partition  sale,  notice  that  the  land  had  been 
used  by  plaintiff  and  the  public  for  a  right 
of  way  for  a  time  insuflScient  to  create  title 
by  pi-escription,  and  notice  of  recording  of 
plans  showing  such  use  for  the  same  period 
of  time,  does  not  affect  his  title.  Silverman 
V.  Betti  (Mass.)  1918C-90. 

4.  Grounds  for  setting  aside. — Mere  in- 
adequacy of  price,  unless  so  great  as  to 
shock  the  conscience  or  amount  to  evidence 
of  fraud,  will  not  justify  the  court  in  refus- 
ing to  approve  a  sale.  Stevenson  v.  Gault 
(Ark.)    1918E-433.  (Annotated) 


134: 


ANN.  CAiS.  DIGEST  (i'JlbC-l'JlsE). 


5.  Courts  will  seize  upon  slight  circum- 
stances to  add  to  the  weight  of  inadequacy 
of  price  to  turn  the  scale  where  it  appears 
that  the  purchaser  is  in  some  measure  re- 
sponsible for  it.  Stevenson  v.  Gault  (Ark.) 
1918E-433.  (Annotated) 

6.  In  case  where  land  worth  $3,500  was 
sold  at  judicial  sale  for  $500,  where  a  bid  for 
$1,000  was  withdrawn,  and  others  refrained 
from  bidding  because  of  a  map  produced  at 
the  sale  showing  that  the  land  was  located 
in  a  county  where  land  was  worthless,  and 
where  purchaser  who  had  been  upon  the 
land  did  not  inform  bidders  that  the  land 
was  not  so  located,  and  the  administrator 
of  the  estate  of  the  owner  was  taken  into 
a  partnership  on  the  deal  by  the  purchaser, 
the  court  is  justified  in  setting  aside  the  sale, 
although  no  fraud  was  intended,  and  the 
purchaser  did  nothing  to  discourage  bidding. 
Stevenson  v.   Gault    (Ark.)    1918E-433. 

(Annotated) 


JUNK  I>EAI<ERS  ANB  JUNK  SHOPS. 

1.  Viridity  of  license  tax. — Laws  1916,  c. 
704,  §  172,  requiring  junk  dealers  to  take 
out  an  annual  license,  is  not  in  violation  of 
bill  of  rights,  art.  15,  providing  that  every 
person  ought  to  contribute  his  proportion  of 
public  taxes  according  to  his  actual  worth 
in  property;  it  being  a  tax  upon  an  occu- 
pation.    State  V.  Shapiro  (Md.)   1918E-196. 

(Annotated) 

2.  Laws  1916,  c.  704,  §  172,  imposing  a 
license  tax  upon  junk  dealers,  is  not  void  for 
uncertainty,  although  the  term  '"junk  deal- 
er" is  not  defined,  as  the  nature  of  the  busi- 
ness is  commonly  known,  and  may  be  judi- 
cially noticed;  a  "junk  dealer"  being  a  per- 
son engaged  in  buying  and  selling  old  iron 
or  other  metals,  glass,  paper,  cordage,  or 
other  waste  or  discarded  material.  State  v, 
Shapiro  (Md.)  1918E-196.  (Annotated) 

3.  Laws  1916.  c.  704,  §  172,  basing  license 
fees  for  the  privilege  of  dealing  in  junk  upon 
population  of  the  city  or  county  where  con- 
ducted, is  based  upon  an  accepted  theorj^  of 
classification,  and  will  be  presumed  to  be  rea- 
sonable, in  the  absence  of  conclusive  proof  to 
the  contrary.  State  v.  Shapiro  (Md.)  1918E- 
196.  (Annotated) 

4.  Laws  1916,  c.  704,  §  172,  is  a  revenue 
measure  not  purporting  to  have  any  relation 
to  the  police  power;  and  where  there  is  no 
evidence  that  fees  imposed  upon  junk  deal- 
ers are  excessive,  they  will  be  presumed  to 
be  fair  and  reasonable.  State  v.  Shapiro 
(Md.)    1918E-196.  (Annotated) 


JURISDICTION. 

See  Appeal  axd  Error;  Coubts;  Venub. 
Of  juvenile  court,  see  Infants,  8-10. 


JURY. 

Affidavit  of  jurors  to  correct  mistake  in  ver- 
dict, see  Verdict,  5,  8,  9. 


Report  of  grand  jury  as  privileged  communi- 
cation, see  Libel  and  Slander,  14-16. 

Scope  of  requirement  of  secrecy  by  member 
of  grand  jury,  see  Witnesses, '2. 

Summary  judgment  on  appeal  bond  as  vio- 
lating right  to  trial  by  jury,  see  Appb^l 
AND  Erbob,  116. 

1.  Verdict  by  less  than  full  number — 
Validity  of  statute. — Const.  Declaration  of 
Rights,  §  7,  declaring  that  the  right  of  trial 
by  jury  shall  remain  inviolate,  but  that  a 
jury  trial  may  be  waived  by  the  parties  in 
the  manner  prescribed  by  law,  prohibits  the 
legislature  from  allowing  a  less  number  than 
the  whole  of  a  petit  jurj'  to  render  a  ver- 
dict, for  the  words  "trial  by  jury,"  as  used 
in  the  constitution,  should  have  their  com- 
mon-law meaning,  and  the  essential  elements 
of  such  trial  are  that  the  jury  shall  be 
twelve  in  number,  and  shall  be  impartial, 
and  the  verdict  shall  be  unanimous.  Minne- 
qua  Cooperage  Co.  v.  Hendricks  (Ark.) 
1918D-687.  (Annotated) 

2.  Competency  of  juror — Opinion  as  to 
merits. — A  juror  who  on  his  voir  dire  tes- 
tified that  he  had  heard  detailed  what  pur- 
ported to  be  all  the  facts  by  a  person  who 
claimed  to  know  all  about  the  case  of  his 
own  knowledge,  and  that  he  had  a  fixed  opin- 
ion as  to  the  guilt  or  innocence  of  the  de- 
fendant that  it  would  take  strong  evidence 
to  remove,  is  clearly  incompetent  to  sit  as 
a  juror  and  on  a  challenge  for  cause  should 
be  rejected,  even  though  on  further  examina- 
tion he  stated  that  he  could  and  would, 
notwithstanding  such  opinion,  act  impar- 
tially and  fairly,  and  render  an  impartial 
verdict  upon  the  law  and  the  evidence,  and 
where  the  defendant  exhausts  his  peremptory 
challenges,  and  such  juror  is  retained  on  the 
panel,  the  overruling  of  the  challenge  is 
ground  for  reversal.  Morehead  v.  State 
(Okla.)   1918C-416. 

3.  Peremptory  challenges. — In  a  wir  con- 
test, the  sole  issue  being  will  or  no  will,  the 
parties  proponent  and  the  parties  contestant 
are  entitled  to  but  four  peremptorv  chal- 
lenges.    Walsh's  Estate   (Mich.)   1918E-217. 

4.  Grounds  for  challenge — Drawing  of  ex- 
cessive number. — An  objection  that  an  ex- 
cess of  names  of  jurors  was  drawn  does  not 
go  to  the  whole  panel,  but  applies  onlj-  to 
the  excess,  and  is  only  a  matter  of  chal- 
lenge to  the  individual  jurors  drawn  in  ex- 
cess.    State  V.  Morse   (S.  D.)    ini8C-o70. 

6.  Irregularities  in  drawing. — Under  Code 
Or.  Proc.  §§  320-322,  defining  a  "challenge  to 
the  panel"  as  an  objection  to  all  the  trial 
jurors,  and  providing  that  it  may  be  found- 
ed on  a  material  departure  from  the  forms 
prescribed  by  law.  a  challenso  to  the  panel 
on  the  groimd  that  the  same  was  not  se- 
lected or  drawn  in  the  manner  provided  by 
•statute,  that  the  jury  drawers  drew  from 
the  jury  box  some  names  that  were  not  in- 
cluded in  the  list  summoned  to  appear  as 
jurors,  and  that  some  of  the  jurors  drawn 
from  the  box  were  not  summoned  and  are 
not  present  as  jurors,  is  properly  overruled 
for    insufficiency   of   allegations    of   grounds 


JUSTICE  OF  THE  PEACE— LABOE  COMBINATIONS.       135 


for    a    challenge.      State    v.    Morse    (S.    D.) 
19180-570. 

6.  A  challenge  to  the  panel  on  the  gi-oimd 
that  the  officers,  after  having  drawn  from  the 
box  the  number  of  names  provided  for  in  the 
order  of  the  court,  discarded  certain  names 
and  drew  others  in  their  place,  is  properly 
overruled  for  failing  to  show,  as  required  by 
Laws  1913,  c.  280,  §  1,  that  accused  was 
prejudiced  thereby  in  his  substantial  rights, 
though  by  Pol.  Code,  §  717,  the  person  draw- 
ing the  names  has  no  authority  to  discard 
names,  so  that  there  was  a  departure  from 
the  forms  prescribed.  State  v.  Morse  (S. 
D.)  1918C-570. 

7.  Juror  making  affidavit  in  case. — One  giv- 
iag  an  affidavit  that  he  believes  that  ac- 
cused, seeking  a  change  of  venue,  may 
obtain  a  fair  trial,  may  not  be  challenged  as 
a  juror  for  implied  bias  under  Code  Cr.  Proc. 
§  339.  stating  the  only  causes  of  a  challenge 
for  implied  bias,  which  do  not  include  the 
giving  of  such  an  affidavit  as  a  cause.  State 
r.  Morse   (S.  D.)   1918C-570. 

8.  One  giving  to  the  state's  attorney,  for 
use  in  resisting  a  motion  for  change  of  venue, 
an  affidavit  wherein  he  asserts  that  he  be- 
lieves that  accused  can  have  a  fair  trial  in 
the  county,  may  not  be  challenged  for  ac- 
tual bias.  State  v.  Morse  (S.  D.)  19180- 
570. 

9.  Failure  to  answer  challenge. — The  fail- 
ure of  the  state  to  except  or  answer  a 
diallenge  to  the  panel  in  advance  of  the 
overruling  therof  by  the  court  is  not  pre- 
judicial, where  the  challenge  cannot  be  sus- 
tained.    State  v.  Morse  (S.  D.)  1918C-570.       i 

10.  Ruling  on  challenge. — The  discretion  of 
the  trial  court  conferred  bj'  Code  Or.  Proc. 
§  338,  in  determining  the  question  of  actual 
bias  of  a  juror,  will  not  be  disturbed  on  ap- 
peal  except  for  abuse  of  discretion.  State 
V.  Morse   (S.  D.)   1918C-570. 

11.  IVUsconduct — Disclosure  of  state  of  de- 
liberations.— The  mere  fact  that  in  response 
to  an  inquiry  of  the  court  as  to  how  the  jury 
stood  numerically,  the  foreman  answered: 
"Eight  for  conviction  and  four — "  is  no 
ground  for  a  new  trial,  where  it  does  not 
appear  that  the  defendant  was  prejudiced  by 
such  misconduct.  Poling  v.  State  (Okla.) 
1918E-663.  (Annotated) 


JUSTICE  OF  THE  PEACE. 

A.S  judge,  see  Judges,  1. 

Justice's  Court  as  court,  see  Judges,  1. 

1.  Default  judgment. — Failure  to  attend 
court. — In  an  action  before  a  justice  of  the 
peace,  agreement  that  the  case  could  not  be 
tried  until  Wednesday  afternoon  not  amount- 
ing to  an  agreement  to  try  the  case  in  vaca- 
tion, the  court  being  in  session  on  Wednes- 
day afternoon,  the  justice  had  full  and  com- 
plete jurisdiction  to  dispose  of  it  at  that 
time  or  not,  and,  it  being  the  duty  of  de- 
fendant to  have  -nformed  himself  that  the 
term  was  still  in  session,  and  to  have  as- 
certained what  would  be  done  with  his  case, 
a   default   judgment   rendered   on   Thursday 


morning  when  the  case  was  reached  in  due 
course  is  not  void.  Welch  v.  Hannie  (Miss.) 
1918C-325. 

2.  Suspension  of  triaL — A  judgment  by  de- 
fault in  an  action  before  a  justice  of  the 
peace  is  not  rendered  void  because  the  jus- 
tict,  while  it  was  pending,  suspended  busi- 
ness in  his  courtroom  to  sit  as  one  of  the 
committing  justices  for  an  alleged  crime  oc- 
curring in  his  district,  although  by  agree- 
ment the  trial  took  place  in  another  district. 
Welch  v.  Hannie  (Miss.)   19180-325. 

3.  Effect  of  errors  of  justice. — In  a  suit 
for  unliquidated  damages,  tried  before  a 
justice  of  the  peace,  the  irregular  introduc- 
tion of  plaintiff's  testimony  by  statement 
of  his  counsel  that  the  testimony  was  the 
same  as  in  a  previous  trial,  and,  the  jus- 
tice being  judge  both  of  the  law  and  the 
facts,  the  failure  to  introduce  testimony  as 
to  the  amount  of  damages,  are  defects  ren- 
dering a  default  judgment  irregular  or  void- 
able, but  not  void,  and  the  irregularity  can 
only  be  taken  advantage  of  by  appeal  or 
writ  of  certiorari.  Welch  v.  Hannie  (Miss.) 
1918C-325. 

4.  Necessity  for  writ  of  inquiry. — In  an 
ex  delicto  case,  there  is  no  necessity  for  a 
writ  of  inquiry  at  a  trial  before  a  justice 
of  the  peace,  because,  unless  a  jury  is  called 
for,  the  justice  passes  upon  the  questions  of 
liability  and  amount  of  damages  at  the  same 
time,  and  it  is  only  necessary  to  introduce 
testimony  showing  damages  when  the  de- 
fault, judgment  is  taken.  Welch  v.  Hannie 
(Miss.)  1918C-325. 

JUSTIFICATION. 

For  utterance  of  libel,  see  Libel  and  Slan- 
der, 36-43. 


JUVENILE  COURTS. 

See  Infants,  8-15. 

I.ABOR   COMBINATIONS. 

1.  Statutes  Affecting,  135. 

2.  Orders  and  Rules,  136. 

3.  Strikes,  136. 

4.  Boycotts,   136. 

5.  Actions,  136. 

See  Labor  Laws. 

1.  Statutes  Affecting. 

1.  Ordinance  against  picketing. — A  munic- 
ipal ordinance  defined  conspiracies  to  in- 
jure trade,  business,  or  commerce  as  any 
combination  or  agreement  between  two  or 
more  persons  not  to  buy  from  or  sell  to,  or 
have  dealings  with  any  person  or  persons,  or 
to  induce  or  attempt  to  induce  other  persons 
not  to  buy  from  or  have  dealings  with  any 
person  or  persons,  etc.,  for  the  purpose  or 
with  the  intent  to  compel  or  force  employ- 


136 


A^:S.  CAS.  DIGEST  U^l^^-l'-^l^i^). 


ment  or  discharge  from  his  employment.  The 
ordinance  further  declared  that  if  any  person  , 
alone  or  in  company  with  others  shall  carry 
or  display,  or  cause  to  be  carried  or  displayed, 
print,  or  circulate,  or  cause  to  be  printed 
or  circulated,  any  banner,  sign,  etc.,  which 
by  its  terms  directly  or  indirectly  induces- or 
attempts  to  induce  others  not  to  buy  from  • 
or  sell  to  or  have  dealings  with  any  desig- 
nated person,  or  shall  loiter  or  parade  back 
and  forth,  or  cause  any  person  or  persons  to 
loiter  or  parade  back  and  forth,  in  front  of, 
or  in  the  vicinity  of,  any  store,  etc.,  such  con- 
duct shall  be  prima  facie  evidence  of  a  con- 
spiracy to  injure  the  trade  or  business  of  the  ' 
person  or  persons  referred  to  by  the  banner, 
etc.,  or  whose  property  is  thus  patrolled.  A 
"strike"  is  defined  as  the  act  of  a  body  of 
workmen  employed  by  the  same  master  in 
stopping  work  all  together  at  a  prearranged 
time,  and  refusing  to  continue  until  some  con- 
cession is  granted  by  the  employer,  while  a 
"boycott"  is  defined  as  a  combination  to  cause 
a  loss  to  one  person  by  coercing  others 
against  their  will  to  withdraw  from  him  their 
business  intercourse,  by  threats  that  unless 
others  do  so,  the  combination  will  cause 
similar  loss  to  them.  It  is  held  that  the 
ordinance,  though  valid  as  applied  to  "picket- 
ing," which  is  defined  as  posting  members  of 
a  trade  union  on  a  strike  at  all  the  ap- 
proaches to  works  for  the  purpose  of  ob- 
serving or  reporting  the  workmen  going  to  or 
coming  from  the  works,  and  of  using  such 
influence  as  may  be  in  their  power  to  pre- 
vent the  workmen  from  accepting  work  there, 
it  is  invalid  in  depriving  Avorkmen  of  their 
right  to  strike  en  masse;  that  right  having 
been  recognized  for  many  years.  Hall  v. 
Johnson  (Ore.)  1918E-49.  (Annotated) 

2.  Orders  and  Rules. 

2.  Voluntary  orders  by  a  labor  organiza- 
tion for  the  benefit  of  its  members  and  the 
enforcement  thereof  within  the  organization 
is   not   coercion,   as   members   who   are    not 

•willing  to  obey  the  orders  are  at  liberty  to 
withdraw  from  the  organization.  Bossert 
v.  Dhuy  (N.  Y.)  1918D-661. 

(Annotated) 

3.  The  voluntary  adoption  by  an  associa- 
tion of  employees  of  reasonable  rules  relat- 
ing to  persons  for  whom  and  conditions  un- 
der which  its  members  shall  work  is  not 
illegal  at  common  law.  Bossert  v.  Dhuy 
(X.  Y.)  1918D-661.  (Annotated) 

4.  An  association  of  individuals  may  de- 
termine that  its  members  shall  not  work  for 
specified  employers  of  labor,  and.  if  the  de- 
termination is  in  good  faith  and  not  through 
malice  or  otherwise  to  injure  an  employer, 
that  such  action  does  result  in  incidental 
injury  does  not  warrant  an  in] unction.  Bos- 
sert V.  Dhuy   (N.  Y.)    1918D-661. 

(Annotated) 

5.  Enforcement. — The  enforcement,  by  fine 
or  expulsion,  of  rules  adopted  by  an  associa- 
tion relating  to  persons  for  whom  members 
may  work,  is  not  illegal.  Bossert  v.  Dhuy 
(N.  Y.)  1918D-661.  (Annotated) 


8.  Work  with  nonunion  employees  or  ma- 
terial.— It  is  not  illegal  for  the  officers  and 
agents  of  a  trade  union  to  refuse  to  allow 
members  of  the  brotherhood  to  work  in 
plaintiffs'  mill  with  nonunion  men  or  to  re» 
fuse  to  allow  its  members  to  work  in  the 
erection  of  materials  furnished  in  a  non- 
union shop.  Bossert  v.  Dhuy  (N.  Y.)  lOlSD- 
661.  (Annotated) 

7.  The  voluntary  adoption  of  a  rule  not 
to  work  upon  nonunion  made  material  and 
its  enforcement  in  a  particular  case  differs 
from  a  general  boycott  of  a  particular  dealer 
with  a  malicious  purpose  to  destroy  his  good 
will  or  liusiness,  and  an  act  done  maliciously 
for  an  illegal  purpose  may  be  restrained,  but, 
when  done  in  good  faith  for  a  legal  purpose, 
may  be  held  to  be  within  the  bounds  of  rea- 
sonable business  competition.  Bossert  v. 
Dhuy  (N.  Y.)  1918D-661.  (Annotated) 

8.  Requiring  employment  of  certain  num- 
ber of  musicians. — ^A  rule  of  musicians  or- 
ganized in  a  union,  whereby  a  theater  is  com- 
pelled to  employ  a  number  of  musicians 
specified  by  the  union  if  it  wishes  to  employ 
any  member  of  the  union,  though  in  the 
theater's  opinion  the  employment  of  a  single 
musician  is  the  most  advantageous  way  of 
conducting  its  business,  and  the  employment 
of  more  than  one  nmsieian  will  cause  it 
pecuniary  loss,  was  illegal,  and  subject  to 
injunction,  as  interfering  with  an  employer's 
right  to  a  free  flow  of  labor.  Haverhill 
Strand  Theatre  v.  Gillen  (Mass.)   1918D-650. 

(Annotated) 

3.  Strikes. 

9.  A  strike  by  a  labor  union  is  one  of  the 
legal  means,  which  laborers  have  a  right  to 
resort  to,  to  enforce  a  legal  combination. 
Haverhill  Strand  Theatre  v.  Gillen  (:Ma?s.)i 
1918D-650. 

4.  Boycotts. 

10.  Where  a  combination,  as  of  a  labor 
union,  is  a  legal  one,  a  plaintiff,  as  an  em- 
ployer, has  a  right  to  complain  if  the  par- 
ties to  the  combination  undertake  to  enforce 
it  by  legal  means.  Haverhill  Strand  Theatre 
V.  Gillen   (Mass.)   1918D-650. 

11.  A  boycott  and  threats  of  intimidation 
by  using  physical  violence  are  illegal  means 
of  enforcing  a  legal  combination  of  laborers 
in  a  union.  Haverhill  Strand  Theatre  v. 
Gillen    (Mass.)    1918D-650. 

12.  For  a  union  to  call  upon  the  public 
generally  to  discontinue  using  plaintiffs'  ma- 
terial and  seek  to  prevent  all  persons,  by 
communication  or  otherwise,  from  dealing 
with  plaintiffs,  is  illegal.  Bossert  v.  Dhuy 
(N.   Y.)    1918D-661. 

5.  Actions. 

13.  Injunction  against  unlawful  acts. — If  a 
labor  union  notifies  an  employer  that  it  will 
enforce  an  illegal  rule  of  the  union,  which 
operates  to  the  employer's  prejudice,  he  has 
a  right  to  bring  a  bill  to  have  the  union 
enjoined  from  enforcing  it,  even  in  the  ab- 
sence of  a  strike  or  of  threats  on  the  part 


LABOR  LAWS. 


13: 


of  the  union,  since,  when  a  combination  is 
illegal,  a  person  has  a  right  to  have  it  en- 
joined in  case  it  operates  to  hia  prejudice, 
on  proving  the  fact  that  the  persons  involved 
in  the  combination  intend  to  enforce  it.  Hav- 
erhill Strand  Theatre  v.  Gillen  (Mass.) 
1918D-650. 

14.  Question  of  law. — ^Whether  the  pur- 
pose for  which  a  combination  of  laborers  is 
made  does  or  does  not  justify  interference 
with  an  employer's  right  to  a  free  flow  of 
labor  is  a  question  of  law  for  the  court. 
Haverhill  Strand  Theatre  v.  Gillen  (Mass.; 
1918D-650. 


I.ABOR  liAWS. 

See  Labor   Combixatio's. 

Judicial  notice  of  labor  conditions  of  w^omen, 
see  Evidence,  5. 

Validity  of  act  prohibiting  transportation  in 
interstate  commerce  of  products  of  child 
labor,  see  Ixtekstate  Commerce,  10-12. 

1.  Federal  hours  of  service  act. — Unavoid- 
able accidents  causing  delay  do  not  excuse 
a  carrier,  under  the  proviso  in  section  3  of 
the  Hours  of  Service  Act  of  March  4,  1907 
(34   Stat,   at   L.    1416.   chap.   2939,   Fed.    St. 

Ann.  1909  Supp.  p.  581),  §  3,  ''that  the  pro- 
visions of  this  act  shall  not  apply  in  any 
case  of  casualty  or  unavoidable  accident  or 
the  act  of  God;  nor  where  the  delay  was  the 
result  of  a  cause  not  known  to  the  carrier 
or  its  officer  or  agent  in  charge  of  such  em- 
ployee at  the  time  said  employee  left  a  ter- 
minal, and  which  could  not  have  been  fore- 
seen," in  keeping  a  train  crew  on  duty  beyond 
the  prescribed  period  in  order  to  complete 
the  regular  run  after  the  train  had  arrived 
at  an  intermediate  point  (a  division  terminal, 
but  not  the  terminal  for  the  train  crew)  at 
which  the  company  could  readily  have  sub- 
stituted a  relief  crew  for  the  men  who  had 
then  already  been  on  duty  for  more  than  the 
prescribed  period.  Atchison,  etc.  R.  Co.  v. 
United  States   (U.  S.)   19180-794. 

(Annotated) 

2.  Requiring  toilet  rooms  for  employees. — 
Laws  1913,  p.  401,  requiring  foundries  to 
provide  sanitary  facilities  for  workmen,  is 
not  invalid,  as  special  legislation,  because  not 
applying  to  all  establishments  generally, 
since  the  word  "•establishments"  means  in- 
stitutions, and  usually  applies  to  concerns 
of  a  public  nature,  and  frequently  includes 
the  places  where  they  are  conducted,  as  well 
as  the  physical  things  connected  therewith. 
State  V.  ScuUin-Gailagher  Iron.  etc.  Co. 
(Mo.)   1918E-620.  '  (Annotated) 

3.  "Foundries"  are  works  for  the  casting 
of  metals,  and,  the  conditions  and  circum- 
stances under  which  foundry  employees  work 
being  different  from  those  of  other  employ- 
ments. Laws  1913,  p.  401,  requiring  foun- 
dries to  provide  sanitary  toilet  facilities  for 
workmen,  is  not  invalid  as  class  legislation. 
State  V.  Scullin-Gallagher  Iron,  etc.  Co.  (Mo.) 
1918E-620.  (Annotated) 

4.  Minimum  wage  rate  for  women. — Laws 
1915,  p.  781,  establishing  a   minimum  wage 


for  females,  does  not  violate  Const.  U.  S. 
Amend.  14,  by  interfering  with  the  right  of 
contract  of  employer  and  employees,  but  is 
a  valid  exercise  of  the  state's  police  power, 
being  intended  to  protect  the  health  and  mor- 
als of  female  employees.  State  v.  Crowe 
(Ark.)  1918D-460.       '  (Annotated) 

5.  It  must  be  presumed  that  the  legisla- 
ture passed  Laws  1915,  p.  781,  establishing 
a  minimum  wage  for  females  to  remedy  ex- 
isting perils,  and  while  the  minimum  wage 
established  must  be  fair  and  reasonable,  it 
must  be  presumed  that  the  legislature  prop- 
erly exercised  its  power  to  establish  such 
wage.     State  v.  Crowe    (Ark.)    1918D-460. 

(Annotated) 

6.  Limiting  hours  of  labor  for  females — 
Validity  of  statute. — Chapter  45,  Laws  1915, 
limiting  horns  of  labor  for  females,  is  un- 
constitutional, so  far  as  applying  to  restau- 
rants, as^  class  legislation,  under  Const.  U. 
S.  Amend.  14,  because  applying  to  all  hotels 
and  restaurants  except  those  "operated  by 
railroad  companies;"  the  distinction  being  an 
arbitrary  and  unreasonable  one.  State  v. 
Le  Barron    (Wyo.)    1918D-998. 

(Annotated) 

7.  Such  statute  is  unconstitutional,  so  far 
as  applying  to  restaurants,  as  violating  Const, 
art.  1,  §  34,  providing  that  all  laws  of  a 
general  nature  shall  have  a  uniform  opera- 
tion. State  v.  Le  Barron  (Wyo.)  1918D- 
998.  (Annotated) 

8.  Such  statute  is  unconstitutional,  so  far 
as  applying  to  restaurants,  as  contravening 
Const,  art.  3,  §  27,  providing  that  in  all  cases 
where  a  general  law  can  be  made  applicable 
no  special  law  shall  be  enacted.  State  v. 
Le  Barron  (Wyo.)  1918D-999.       (Annotated) 

9.  Employee's  included. — Under  St.  1913,  c. 
758,  providing  that  no  woman  shall  be  em- 
ployed in  laboring  in  any  mercantile,  me- 
chanical establishment,  telegraph  office,  or 
telephone  exchange  more  than  ten  hours  in 
any  one  day,  and  that  in  no  case  shall  the 
hours  of  labor  exceed  fifty-hour  in  a  week,  a 
grocery  company,  which  employs  a  woman  as 
cashier  in  excess  of  the  statutory  hours  of 
labor,  it  being  her  duty  to  sit  in  a  ''cage" 
having  room  for  two  persons  and  make 
change  for  customers'  slips,  also  doing  some 
bookkeeping,  is  guilty  of  a  violation  of  the 
act.  Although  the  history  of  the  words  "in 
laboring"  in  such  enactments  would  seem  to 
qualify  tlie  word  "employed"  so  as  to  exclude 
from  the  operation  of  the  statute  all  em- 
ployees not  engaged  in  physical  labor,  such 
a  construction  is  prevented  by  the  fact  that 
the  act  includes  within  its  inhibition  women 
in  telegraph  offices  and  telephone  exchanges 
whose  labor  involves  mental  alertness,  rath- 
er than  manual  labor.  Cora.  v.  John  T. 
Connor  Co.    (Mass.)    1918C-337.    (Annotated) 

10.  Dressmaking  shop. — A  dressmaker  em- 
ploying from  five  to  ten  girls  in  operating 
sewing  machines,  who  purchases  and  fur- 
nishes materials  and  makes  garments  for 
general  sale  as  well  as  to  special  order  con- 
ducts a  "manufacturing  establishment" 
within   the    statute    forbidding    the    employ- 


138 


ANX.  CAS.  DIGEST  (1918C-1918E). 


ment  of  females  for  more  than  eight  hours 
a  day  in  such  an  establishment.  Hotchkiss 
V.  District  of  Columbia    (D.  C.)    1918D-683. 

(Annotated) 
11.  Such  a  dressmaking  shop  is  not  a  "mer- 
cantile establishment"  within  the  same  act. 
Hotchkiss   V.   District   of   Columbia    (D.   C.) 
1918D-6ra. 


IJLBaB    UniONS. 

See  Labob  Combinations. 


UIlCKES. 

Necessity  of  finding  as  to  issue  excluded  by 

laches,  see  Tbial,  11. 
Of  suit  to  cancel  deed  from  state  for  fraud, 

see  Public  Lands,  13,  14. 

1.  Application  to  state. — The  doctrine  of 
laches  is  applicable  to  the  state.  State  v. 
Hyde   (Ore.)    1918E-688. 

2.  Delay  in  enforcing  subscription  to  cor- 
porate stock. — An  action  in  equity  by  an  in- 
jured stockholder  who  has  paid  for  his  stock 
in  full  against  delinquent  subscribers,  who 
are  also  controlling  directors  of  the  corpo- 
ration, for  their  refusal  to  call  for  their  own 
unpaid  subscriptions,  so  that  they  may  be- 
come part  of  the  corporation's  assets  to 
meet  its  liabilities,  in  the  absence  of  any 
showing  that  the  defendants  were  in  any 
way  prejudiced  by  the  plaintiflfs  action  in 
participating  with  them  in  borrowing  money 
with  knowledge  that  their  subscriptions  were 
unpaid,  and  in  waiting  seven  years  before 
bringing  the  action,  or  that  any  change  of 
concUtions  had  taken  place  during  the  delay, 
is  not  barred  by  laches;  the  doctrine  of 
laches,  as  a  defense,  being  founded  on  the 
principle  of  equitable  estoppel  which  will 
not  permit  the  late  assertion  of  a  right  where 
other  persons,  by  reason  of  the  delay,  will  be 
injured.  Bergman  v.  Evans  (Wash.)  19180- 
848. 

3.  In  such  action,  laches  is  not  a  bar  where 
the  illegal  acts  continued  up  to  the  day  of  the 
suit.    Bergman  v.  Evans  (Wash.)  19180-848. 


UiKD  CONTRACT. 

See  Vendor  and  Pitbchaseb. 

XAND  DEPARTMENT. 

See  Public  Lands. 

LANDLORD  AND  TENANT. 

1.  Leases: 

a.  Acknowledgment,    138. 

b.  Construction  Generally,   138. 

c.  Modification,    138. 


2.  Possession  and  Use  of  Premises: 

a.  Lease  of  Part  of  Building,  138. 

b.  Use  of  Premises,  139. 

c  Kepairs  and  Improvements,    139. 

d.  Personal  Injuries,  139. 
8.  Assignment  or  Subletting,    139. 
4.  Rent,  139. 
6.  Termination  of  Lease,  140. 

Implied  trust  in  proceeds  of  insurance  on 
buildings  constructed  by  tenant,  see 
Trusts  and  Tbustees,  6. 

Insurable  interest  of  lessee,  see  Fibe  Insub- 
ance,  2,  3. 

Placing  of  excavated  material  on  lot  by  les- 
see as  waste,  see  Waste,  1. 

Eight  of  tenant  to  remove  fixtures,  see  Fix- 
tubes,  2-8. 

1.  Leases. 

a.  Acknowledgment. 

1.  Necessity. — Under  the  statutes  an  un- 
acknowledged lease  for  over  a  year  is  void 
except  as  it  creates  a  tenancy  from  month 
to  month,  or  other  rent  period.  Jamison  v. 
Reilly    (Wash.)    1918D-160.  (Annotated) 

b.  Construction  Generally. 

2.  Against  lessor. — ^In  case  of  doubt  or  un- 
certainty as  to  meaning  of  language  used  in 
a  lease,  its  provisions  will  be  construed  most 
strongly  against  the  lessor  and  in  favor  of 
the  lessee.  McClintock,  etc.  R.  Co.  v.  Aetna 
Explosives  Co.  (Pa.)  1918E-1078. 

3  Covenant  to  insure — Acts  of  public  en- 
emy.— ^A  covenant  in  a  lease  binding  the  ten- 
ant to  keep  the  premises  insured  against  fire 
in  a  named  insurance  company  or  some  other 
responsible  company  does  not  obligate  liim 
to  insure  against  fire  caused  by  the  military 
operations  of  the  public  enemy,  where  the 
company  named  does  not  insure  against 
risks  of  that  kind.  Unjohn  v.  Kitchens 
(Eng.)   1918E-294,  (Annotated) 

4.  Showing  intent. — ^Acts  of  the  parties  to 
the  lease,  before  and  after  its  making,  may 
be  proven  to  show  their  intent  in  making  it. 
Bank  of  Commerce,  etc.  Co.  v.  Burke  (Tenn.) 
19180-439. 

c.  Modification. 

5.  Revoking  conditional  assent  to  modifi- 
cation.— Where  a  tenant,  who  has  consented 
to  the  landlord's  instalment  of  a  stove  in  her 
premises,  though  the  lease  calls  for  fuinace 
heat,  writes  a  letter,  informing  him  of  her 
rights  under  the  lease  and  demanding  fur- 
nace heat,  stating  that  the  stove  is  unsatis- 
factory, her  conditional  assent  to  the  instal- 
lation of  the  stove  is  revoked.  Buchanan  v. 
Orange  (Va.)  1918D-301. 

2.  Possession  and  Use  of  Premises, 
a.  Lease  of  Part  of  Building. 

6.  Where  the  subect  of  a  lease  is  only  the 
floor  of  a  building,  the  landlord  controlling 
his  own  land  and  all  the  rest  of  the  building. 


LANDLORD  AND  TENANT. 


139 


the  rigid  principles  governing  the  relation  of 
landlord  and  tenant,  owing  to  the  sanctity 
with  which  the  common  law  looked  upon 
land,  are  relaxed.  Buchanan  v.  Orange  (Va.) 
1918D-391. 

b.  Use  of  Premises. 

7.  Lease  for  saloon  and  restaurant — Effect 
of  refusal  of  license. — ^A  licensee  is  not  re- 
leased from  liability  under  a  lease  for  a  sa- 
loon and  restaurant,  because  of  a  subsequent 
order  of  the  liquor  license  commissioners 
prohibiting  further  use  of  the  premises  for  a 
saloon,  even  if  it  was  not  due  to  failure  to 
conduct  the  business  lawfully,  the  lessor  not 
having  been  responsible  for  the  order,  the 
lessee  not  being  thereby  entirely  deprived  of 
the  beneficial  use  conferred  by  the  lease,  the 
specified  lines  of  business  not  being  identical 
or  inseparable,  a  '"restaurant"'  being  an  es- 
tablishment where  meals  and  refreshments 
are  served,  while  a  "saloon"  is  a  place  where 
intoxicating  liquors  are  sold  and  consumed, 
and  the  lease  making  no  provision  for  the 
contingency  of  inability  to  seciue  a  saloon 
license  Standard  Brewing  Co.  v.  Weil  (Md.) 
1918D-1143.  (Annotated) 

c.  Repairs  and  Improvements. 

8.  Covenant  of  lessor  to  pay  for  improve- 
ments— Liability  of  grantee. — Land  was 
leased  for  an  amusement  park,  the  lessee  to 
be  entitled  to  all  rents  from  persons  desir- 
ing to  use  the  premises  for  amusements 
All  improvements  placed  on  the  premises  by 
the  lesse  to  carry  out  the  provisions  of  the 
lease,  at  the  expiration  of  the  lease,  were  to 
be  purchased  by  the  lessor  at  seventy-five 
per  cent  of  their  original  cost.  The  lease  de- 
clared that  covenants  should  be  binding  up- 
on the  executors,  administrators  of  the  par- 
ties to  the  lease.  The  lessee  took  possession 
and  constructed  improvements  and  the  lessof 
conveyed  his  reversion.  Rev.  St.  1874,  c.  80, 
§  15,  declares  that  a  lessee  shall  have  the 
same  remedy,  by  action  or  otherwise,  against 
the  lessor,  his  grantees,  assignees,  or  their 
representatives  for  the  breach  of  any  agree- 
ment as  such  lessee  might  have  against  his 
immediate  lessor  of  the  premises.  It  is  held 
that  the  agreement  by  the  lessor  to  purchase 
the  improvements  at  the  expiration  of  the 
lease  was  enforceable  against  the  grantee  or 
assignee  of  the  lessor,  though  assignees  were 
not  mentioned  in  the  lease.  Purvis  v.  Shu- 
man   (111.)    1918D-1176.  (Annotated) 

d.  Personal  Injuries. 

9.  Negligence  of  landlord's  agent  and 
workman. — A  cause  of  action  against  an 
agent  for  the  renting  of  real  property  is 
stated  in  a  petition  which  alleges  that  the 
agent  contracted  at  the  time  of  renting  the 
property  to  repair  a  walk  thereon;  that  af- 
terward, being  requested  by  the  tenant  to 
repair  the  walk,  the  agent  employed  a  man 
to  do  the  work  whom  he  knew  to  be  care- 
less, negligent,  and  incompetent;  that  after 
some  repairs  had  been  made  the  agent  in- 
formed the  plaintiff,  wife  of  the  tenant,  that 


the  walk  had  been  inspected  and  repaired 
and  was  all  right  and  safe  for  her  use,  al- 
though after  being  repaired  the  walk  was  in 
a  dangerous  and  unsafe  condition;  and  that 
the  dangerous  condition  of  the  walk  caused 
her  to  fall  and  break  her  arm.  Wells  v. 
Hansen    (Kan.)    1918D-230.  (Annotated) 

10.  In  such  a  case  a  cause  of  action  is 
stated  against  the  workman,  where  the  pe- 
tition alleges  that  the  workman  employed  to 
make  the  repairs,  after  making  some  repairs, 
informed  the  plaintiff,  the  tenant's  Avife,  that 
the  walk  had  been  inspected  and  repaired 
and  was  all  right  and  safe  for  her  use;  al- 
leges that  the  walk  after  being  repaired  was 
in  a  dangerous  and  unsafe  condition;  and 
that  the  plaintiff  was  injured  by  reason  of 
the  defect  in  the  walk.  Wells  v.  Hanten 
(Kan.)  1918D-230. 

3.  Assignment  or  Subletting. 

11.  Waiver  of  provisions. — Though  a 
brewing  company  is  prohibited  by  statute 
from  engaging  in  the  saloon  business,  such 
a  company  is  not  entitled  to  be  discharged 
from  liability  under  a  lease  to  it  of  prop- 
erty to  be  used  for  a  saloon,  on  the  ground 
that  it  was  illegal  and  void  from  its  incep- 
tion; it,  while  admitting  of  construction 
that  the  company  itself  was  to  conduct 
the^saloon,  and  formally  providing  that  the 
premises  should  not  be  sublet  without  the 
lessor's  written  consent,  providing  that  the 
business  should  be  conducted  in  compliance 
with  the  law,  and  the  parties  having  from 
the  outset  acted  on  the  theory  that  the  prop- 
er and  practical  method  of  operating  under 
the  lease  was  for  the  lessee  to  sublet  to  one 
who  could  legally  engage  in  the  business,  and 
the  provision  against  subletting  being  thus 
waived  and  ineffective.  Standard  Brewing 
Co.  V.  Weil  (Md.)  1918D-1143. 

4.  Rent. 

12.  Unlawful  sale  of  liquor  on  premises — 
Landlord's  knowledge. — Where  a  lease  of  a 
building  does  not  itself  set  forth  an  illegal 
intent  or  use,  and  where  nothing  else  ap- 
pears, the  lessor  is  not  debarred  from  recov- 
ery of  rent  by  his  knowledge  that  the  tenant 
intends  to  use  the  premises  for  the  illegal 
sale  of  liquor.  Bank  of  Commerce,  etc.  Co. 
V.  Burke   (Tenn.)    1918C-439.       (Annotated) 

13.  If  premises  are  leased  for  lawful  pur- 
poses, the  mere  noninterference  by  landlord 
with  subsequent  illegal  traffic  of  his  tenant, 
after  becoming  aware  of  it,  does  not  involve 
him  in  the  tenant's  guilt  as  showing  partic- 
ipation. Bank  of  Commerce,  etc.  Co.  v.  Burke 
(Tenn.)  1918C-439.  (Annotated) 

14.  Although  a  lease  of  a  building  does  not 
itself  set  forth  any  illegal  intent  or  use,  if 
the  lessor  at  the  time  of  leasing  knows  and 
intends  that  the  premises  shall  be  used  for 
an  illegal  purpose,  such  as  prohibited  sales 
of  intoxicating  liquor,  and  he  does  anything 
in  furtherance  of  the  transgression,  he  can- 
not recover  rent.  Bank  of  Commerce,  etc. 
Co.  v.  Burke  (Tenn.)   1918C-439. 

(Annotated) 


140 


ANN.  CAS.  DIGEST  (191SC-1918E;. 


15.  Where  a  building  has  long  been  octu- 
pied  as  a  saloon,  la  so  outfitted,  is  ofTered  for 
rent  as  peculiarly  valuable  for  a  saloon  busi- 
ness, and  after  the  leasing  is  used  for  a 
saloon  by  the  lessee  and  sublessee  with  the 
knowledge  of  the  agents  of  lessors,  although 
it  is  leased  in  terms  for  use  as  a  "store- 
house," lessors  cannot  recover  rent.  Bank  of 
Commerce,  etc.  Co.  v.  Burke  (Tenn.)  I'JISC- 
439.  (Annotated) 

16.  Liability  of  assignor. — A  landlord  by 
recognizing  the  assignment  of  the  lease  and 
accepting  rent  from  the  sublessee,  surren- 
ders his  right  to  collect  rent  from  the  lessee. 
Jamison  v.  Reilly  (Wash.)  1918D-1G0. 

5.    Termination  of  Lease. 

17.  Waiver  of  Notice. — ^A  landlord  by  rec- 
ognizing the  assignment  of  the  lease  and  ac- 
cepting rent  from  the  sublessee,  waives  any 
notice  from  the  lessee  terminating  the  lease. 
Jamison  v.  Reilly  (Wash.)  1918D-160. 

18.  Constructive  eviction. — Where  a  lessor 
of  premises  which  were  intended  to  be  used 
for  a  millinery  shop  agreed  to  furnish  fur- 
nace heat  and  electric  light,  his  failure  to 
furnish  such  heat  and  light,  although  he  did 
install  a  stove  which  soiled  the  tenant's 
goods,  constitutes  a  constructive  eviction, 
warranting  the  tenant  in  vacating  the  prem- 
ises.    Buchanan  v.  Orange  (Va.)   1918D-391. 

(Annotated) 


LARCENY. 

Unauthorized  use  of  automobile  as  larceny, 
see  Automobiles,  25. 


LEADING  QUESTIONS. 

See  WiT.NEisSEisi,  8. 

LEASE. 

See  Landlord  and  Tenant. 

LEG. 

Meaning  of  term,  see  Woeds  and  Phbases,  6. 

LEGACIES. 

See  Annuities;  Wills. 

LEGAL  REPRESENTATIVE. 

See    EXECUTOKS    and   ADMIXISTBAXOIta 

LEGISLATURE. 

See  Statutes. 

LETTERS. 

Admissibility  to  prove  identity  of  deceased, 
see  Homicide.  6,  7. 

Letter  as  self-serving  declaration,  see  Admis- 
sions and  Declarations,  1. 

Presumption  as  to  receipt  of  letter,  see  Evi- 
dence,   38. 

Proof  of  receipt  of  letters,  see  Evidence,  42. 


LAVATORY. 

Eight  of  abutting  owner  for  injury  to  land 
by  erection  of  public  lavatory,  see  Emi- 
nent Domain,  7. 


LEVY. 

See    Attachment;    Executions;    JuDioiAt 
Sales;   Taxation. 


LAW   OF   THE   CASE. 

Binding  effect  of  decision  in  former  appeal, 
see  Appeal  and  Ebrob,  42. 


LAW   OF  THE  ROAD. 

See  Streets  ant)  Highways,  7-9. 

Eight  of  person  alighting  from  car  to  aa- 
siune  performance  of  duty  by  automo- 
bile driver,  see  Automobiles,  *3,  4, 


See  Statutes. 


LAWS. 


LAWYERS. 


See  Attorneys. 


LIABILITY   INSURANCE. 

See  Insurance,  23-44,  39-44. 


LIBEL  AND  SLANDER. 

1.  Statutory  Provisions,  141. 

2.  Nature  and  Elements,  141. 

3.  Words  Constituting  Libel  or  Slander: 

a.  Construction  of  Words,  141. 

b.  Charging  Commission  of  Crime,  141. 

c.  Charging  Disease,  141. 

d.  Political  Criticism,    141. 

4.  Privileged  Communications. 

a.  In  General,    141. 

b.  In    Respect    to    Judicial    Proceedings, 

141. 

c.  Communications      between      Principal 

and  Agent,  142. 

d.  Comment  on  Public  Affairs.  142. 

e.  Concerning  Candidate  for  Office,  142. 


LIBEL  AND  SLA^^DER. 


141 


f.  Official  Comiuiniieations,   142. 
g  Communication    by   One   Owing   Duty 
to  Another,   142. 
5.  Actions: 

a.  Persons  Liable: 

(1)  In  General.  143. 

(2)  Joint  Liability,  143. 

b.  Defenses,    143. 

c.  Pleading,  144. 

d.  Evidence,    144. 

e.  Province  of  Court  and  Jury,  144. 

f.  Instructions,   144. 

g.  Damages,   145. 

Dismissal  of  part  of  defendants  in  suit  for 
conspiracy  and  libel,  see  Dismissal  a>"d 
Nonsuit,'  1, 

Failure  of  minister  to  administer  communion 
as  defamation  of  character,  see  Eeli- 
GioxJS  Societies,  4. 

Liability  of  priest  for  issuance  of  letter  for- 
bidding communicants  to  read  or  sub- 
scribe to  certain  newspapers,  see  Ee- 
LiGiotrs  Societies,  6. 

Venue  in  action  for  libel,  see  Veitde,  1. 

1.  Statutory  Provisions. 

1.  Effect  of  Penal  Statute.— St.  1915,  § 
1217,  providing  the  penalty  for  any  false 
statement  as  to  a  candidate  for  office  in- 
tended to  affect  a  primary,  does  not  change 
the  law  on  civil  liability,  but  is  cumulative 
to  it.    Putnam  V.Browne  (Wis.)  19180-1085. 

2.  Nature  and  Elements. 

2.  Imputation  indirectly  made. — That  a 
charge  is  made  obliquely  and  by  inference, 
instead  of  directly,  renders  it  none  the  less 
defamatory.  McClintock  v.  Mcdure  (Ky.) 
1918E-96. 

3.  Circumstances  of  publication.  —  The 
time,  place,  and  circumstances  attending  up- 
on the  alleged  slanderous  words  are  an  im- 
portant consideration;  not  only  may  the  oc- 
casion and  surrounding  circumstances  rebut 
the  presumption  of  malice,  but  a  distinction 
is  recognized  in  many  particulars  between 
the  same  or  similar  defamatory  words,  when 
spoken  in  passion  or  the  heat  of  controversy, 
and  when  deliberately  written  or  printed, 
and  that  which  would  be  actionable  as  libel 
mav  not  support  an  action  for  slunder.  Bol- 
ton v.  Walker  (Mich)  1918E-1007. 

3.  Words  Constituting  Libel  or  Slander. 

a.  Construction   of   Words. 

4.  Construed  as  a  whole. — In  determining 
whether  statements  in  a  newspaper  editorial 
as  to  a  candidate  for  office  are  libelous,  the 
article  must  be  construed  as  a  whole.  Put- 
nam V.  Browne  (Wis.)  1918C-1085 

b.  Charging  Commission  of  Crime. 

5.  Charging  illegal  use  of  money  by  candi- 
date.—Under  St.  1898,  §  4543b,  prohibiting 
collection  of  money  for  campaign  funds,  the 
expenditure  of  money  so  collected  is  unlaw- 
ful, and  a  false  accusation  of  such  expendi- 


ture is  libelous.     Putnam  v.  Browne   (Wis.) 
1918C-1085. 

c.  Charging  Disease. 

6.  Imputation  of  insanity. — A  charge  im- 
puting a  hereditary  predisposition  to  insan- 
ity, and  that  plaintiff  has  done  things  indi- 
cating impending  insanity,  is  defamatory 
and  libelous  per  se,  from  which  malice  is  or- 
dinary inferable.  McClintock  v.  McClure 
(Ky.)   1918E-96.  (Annotated) 

d.    Political  Criticism. 

7.  False  statements  of  fact  as  to  use  of 
campaign  funds  by  candidate  for  judge, 
though  made  without  malice,  are  actionable. 
Putnam  v.  Browne  (Wis.)   1918C-1085. 

8.  False  statements  in  a  newspaper  edito- 
rial implying  that  plaintiff,  a  candidate  for 
judge,  took  part  in  unlawful  distribution  of 
a  campaign  fund  or  that  he  sold  his  political 
influence  and  surrendered  his  honest  belief 
for  money,  are  libelous.  Putnam  v.  Browne 
(Wis.)  1918C-1085. 

9.  Statements  in  a  newspaper  editorial 
that  a  candidate  for  judge  distributed  in  law- 
ful ways  a  campaign  fimd,  and  received 
money  for  using  his  political  iijfluence  law- 
fully, are  not  libelous.  Putnam  v.  Browne 
(Wis.)  1918C-1085. 

4.  Privileged    Communications. 

a.  In  General. 

10.  Absolute  privilege. — ^If  the  privilege 
attending  words  spoken  is  absolute,  the 
<|uestions  of  good  faith  and  absence  of  mal- 
ice are  immaterial,  in  an  action  for  slander 
based  thereon.  Bolton  v.  Walker  (Mich.) 
1918E-1007. 

11.  Qualified  privilege. — The  rule  of  qual- 
ified privilege  in  the  law  of  slander  relates 
more  particularly  to  private  interests,  where 
the  occasion  casts  on  defendant  a  duty  or 
right  to  commimicate  to  another  some  mat- 
ter of  special  concern, to  one  or  both,  or  to 
others  for  the  protection  of  society  or  some 
interest  he  represents.  Bolton  v.  Walker 
(Mich.)  1918E-1007. 

b.  In  Respect  to  Judicial  Proceedings. 

12.  Remarks  of  prosecutor  not  in  course  of 
proceeding. — Remarks  uttered  by  a  prosecut- 
ing attorney,  criticising  an  attorney  who  op- 
posed him  in  the  trial  of  a  lawsuit,  are  not 
justified  as  within  the  privilege  of  the  attor- 
ney, if  the  remarks  were  not  made  in  the 
course  of  the  judicial  proceeding.  Viosca  v. 
Landfried    (La.)    1918C-1193.      (Annotated) 

13.  Although  it  is  the  privilege  of  the  pub- 
lisher of  a  newspaper  to  publish  a  fair  state- 
ment of  whatever  is  said  and  done  in  the 
course  of  a  judicial  or  other  public  proceed- 
ing, it  is  not  within  his  privilege  to  publish 
a  severe  personal  criticism  indulged  in  by  an 
attorney  who  was  engaged  in  a  lawsuit,  crit- 
icising an  attorney  who  was  opposed  to  him 
therein,  if  the  criticism  was  made  before  or 
after    the   judicial   proceedings,   and   Avas   no 


142 


ANN.  CAS.  DIGEST   (1918CM918E). 


l)art    thereof.      Viosca    v.    Landfried     (La.) 
1918C-1193.  (Annotated) 

14.  Report  of  grand  jury. — That  a  libel- 
ous unauthorized  report  was  presented  in 
open  comt  by  the  foieman  of  the  grand  jury, 
purporting  to  act  in  behalf  of  all  the  mem- 
bers, and  that  they  were  all  present,  appar- 
ently acquiescing  in  what  was  done  is  prima 
facie  evidence  that  all  of  them  acted  in  or 
acquiesced  in  its  publication.  Bennett  v. 
Stockwell  (Mich.)  1918E-1193. 

15.  The  report  of  a  grand  jury  not  being 
privileged,  good  faith  of  the  members  is  not 
a  bar  to  action  for  libel,  but  bears  only  on 
mitigation  of  damages.  Bennett  v.  Stock- 
well  (Mich.)   1918E-1193.  (Annotated) 

16.  A  grand  jury  having  no  authority  to 
make  a  report,  not  followed  by  indictment, 
reflecting  on  an  official,  it  is  not  privileged, 
even  qualifiedly,  as  regards  liability  of  the 
members  for  libel.  Bennett  v.  Stockwell 
(Mich.)    1918E-1193.  (Annotated) 

c.  Communications    between    Principal     and 
Agent. 

17.  If  the  agent  for  a  bonding  company, 
acting  in  good  faith,  without  malice,  and  in 
the  exercise  of  his  duty,  or  information  be- 
lieved to  be  reliable,  wrote  the  company's 
state  agents  that  the  mother  of  a  person  on 
whose  bonds  the  company  was  surety  had 
lost  her  mind,  etc.,  so  acting  in  the  exercise 
of  his  duty  to  communicate  to  the  company 
any  facts  or  information  affecting  its  inter- 
est, the  agent  is  not  liable  for  libel.  Mc- 
Clintock  v  McClure  (Ky)  1918E-96. 

18.  The  fact  that  a  communication  from 
an  agent  to  his  principals  is  qualifiedly  priv- 
ileged does  not  change  the  actionable  £uality 
of  the  words  published,  but  merely  relieves 
from  the  presumption  of  malice.  McClintock 
V.  MeClure  (Ky.)  1918E-96. 

19.  A  communication  ordinarily  libelous 
per  se  is  relieved  from  the  presumption  of 
malice  when  written  by  an  agent  to  his  prin- 
cipals in  relation  to  their  business,  being 
qualifiedly  privileged,  the  burden  of  proof  be- 
ing on  plaintiff,  in  an  action  against  the 
agent,  to  show  that  it  was  written  and  pub- 
lished with  malice.  McClintock  v.  ilcClure 
(Ky.)  1918E-96. 

20.  Effect  of  malice. — If  defendant,  act- 
uated by  malice  to  express  a  doubt  as  to 
plaintiflTs  mental  condition,  and  in  order  to 
bring  about  a  cancellation  of  plaintiff's  bonds 
in  which  a  bonding  company,  defendant's 
principal,  was  surety,  wrote  the  company 
that  plaintiff's  mother  lost  her  mind,  and 
that  his  judgment  was  that  they  had  just  as 
well  drop  the  bond,  etc,  defendant  is  liable 
to  plaintiff.  McClintock  v,  McClure  (Ky.) 
1918E-96. 

d.  Comment  on  Public  Affiairs. 

21.  A  newspaper  publication  commenting 
on  the  organization  of  a  newly  elected  munic- 
ipal council,  referring  to  it  as  a  "Tammany" 
system  and  stating  that  a  "rake -off"  is  sus- 
pected, is  held  not  to  exceed,  as  a  matter  of 
law,,  the  bounds  of  fair  comment   on  public 


affairs  and  to  be  qualifiedly  privileged.    Bul- 
letin Co.  V.  Sheppard   (Can.)    1918E-151. 

(Annotated) 

22.  Absolute  privilege  in  the  law  of  slan- 
der applies  more  directly  to  matters  of  pub- 
lic concern,  in  regard  to  which  it  is  consid- 
ered for  the  general  welfare  that  persons 
should  be  permitted  to  express  their  views 
more  freely  and  fearlessly  than  in  regard  to 
private  matters  or  persons.  Bolton  v  Walk- 
er   (Mich.)    1918E-1O07..  (Annotated) 

23.  Discussion  •  at  meeting  of  board. — 
Where  the  board  of  estimates  of  a  city  at  a 
regular  meeting  was  discussing  a  matter  of 
public  interest  properly  before  it,  there  was 
an  element  of  privileged  communication  in 
remarks  made  by  one  ex  officio  its  member. 
Bolton  V.  Walker   (Mich.)   1918E-1007. 

24.  Where  the  board  of  estimates  of  the 
city  of  Detroit,  created  by  legislative  enact- 
ment, and  given  a  power  of  restraint  in  re- 
lation to  taxation  formerly  vested  in  the 
electors,  thus  exercising  a  negative  function 
in  taxation,  demanding  the  exercise  of  a 
semi-legislative  discretion,  was  discussing  a 
matter  of  public  interest  properly  before  it 
at  a  regular  meeting,  when  one  ex  officio  a 
member  of  the  board,  entitled  to  participate 
in  discussion,  but  not  to  vote,  made  an  al- 
leged slanderous  remark  regarding  another 
member,  the  case  presents  a  case  of  absolute 
privilege.  Bolton  v.  Walker  (Mich)  1918E- 
1007.  (Annotated) 

e.  Concerning  Candidate  for  Office. 

25.  By  becoming  a  candidate  for  judge,  a 
person  places  his  character  as  to  integrity, 
incorruptibility,  and  judicial  ability  before 
the  people  for  consideration,  so  that  an  indi- 
vidual or  a  newspaper  may  in  good  faith 
and  without  malice  criticise  him  in  those  re- 
spects even  severely  and  caustically,  but  in- 
sult or  contempt  or  false  and  libelous  state- 
ments of  fact  are  not  so  privileged.  Putnam 
V.  Browne  (Wis.)  1918C-1085. 

26.  Comparison  to  Judas  Iscariot. — An  ob- 
vious and  thinly  veiled  reference  in  a  news- 
paper editorial  comparing  a  candidate  for  of- 
fice to  Judas  Iscariot  is  a  jibe  and  insult,  and 
not  privileged.  Putnam  v.  Browne  (Wis.) 
1918C-1085. 

b.  Official  Communications. 

27.  One  who  in  good  faith  and  from  a 
sense  of  public  duty  states  to  an  officer  that 
another  has  committed  a  crime  is  not  liable, 
though  the  charge  be  absolutely  false.  Put- 
nam V.  Browne  (Wis.)   19180-1085. 

(Annotated) 

g.  Communication    by    One    Owing   Duty    to 
Another. 

28.  Plaintiff  was  in  charge  of  one  of  de- 
fendant's stores,  and  V.  was  defendant's  gen- 
eral manager  in  charge  of  the  territory,  in- 
cluding such  store.  "WTiile  V.  was  taking  an 
inventory,  plaintiff  left  the  store  without  ex- 
planation, and  did  not  return  that  day.  M., 
a  familiar  friend  of  plaintiff,  with  whom 
plaintiff   lived,    called    at   the   store    and   in- 


LIBEL  AND  SLA]S'DEK. 


143 


quired  for  palintiflf,  and  V.  told  him  tliat 
plaintiff  had  acted  in  a  very  peculiar  way, 
and  had  gone  off  without  saying  anything, 
and  that  his  stock  and  his  cash  were  short. 
It  is  held  that  while,  it  was  perhaps  not  un- 
natural for  V.  to  tell  M.  of  the  shortage,  he 
owed  no  duty  to  M.  to  make  such  statement, 
and  there  was  no  basis  for  a  claim  of  priv- 
ilege. Grand  Union  Tea  Co.  v.  Lord  (U.  S.) 
1918C-1118. 

5.  Actions. 

a.  Persons  Liable. 

(1)   In  General. 

29.  LiabUity  of  corporation. — A  corpora- 
tion is  liable  for  the  slanderous  words  of  its 
agent  if  the  agent  at  the  time  is  transacting 
its  business  and  the  slanderous  words  are 
spoken  in  the  course  of  such  business  and  in 
connection  therewith.  Grand  Union  Tea  Co. 
V.  Lord   (U.  S.)   1918C-1118. 

30.  Plaintiff  was  in  charge  of  one  of  de- 
fendioit's  stores,  and  while  defendant's  man- 
ager was  making  an  inventory  left  the  store 
without  explanation.  M.,  a  friend  of  plain- 
tiff, stopped  at  the  store  and  inquired  for 
him,  and  the  manager  told  him  that  plaintiff 
had  acted  in  a  very  peculiar  way  and  went 
off  without  sayinj;  anything,  and  that  his 
stock  and  his  cash  were  short.  It  is  held 
that  defendant  was  liable  for  the  manager's 
language,  as  he  was  engaged  in  its  business 
and  acting  in  its  behalf  when  the  words  were 
spoken  and  they  referred  to  plaintiff's  acts  in 
the  work  for  which  he  was  employed.  Grand 
Union  Tea  Co.  v.  Lord  (U.  S.)  1918C?-1118. 

(2)   Joint  Liability. 

31.  If  a  libel  is  the  joint  act  of  several  per- 
sons, they  may  be  sued  jointly  or  separately; 
and,  if  sued  separately,  both  actions  may  be 
prosecuted  to  judgment,  and  in  neither  ac- 
tion will  the  liability  of  the  other  wrongdoer 
furnish  any  defense  or  mitigation.  Morse  v. 
Modern  Woodmen  of  America  (Wis.)  1918D- 
480. 

32.  A  master  and  servant,  acting  together 
in  publishing  a  libel,  ?nay  be  sued  jointly  or 
severally,  as  in  the  case  of  other  joint  tort- 
feasors; and,  if  sued  separately,  a  judgment 
against  one  is  not  a  bar  to  the  action  against 
the  other  until  satisfied.  Morse  v.  Modern 
Woodmen  of  America   (Wis.)  10180-480. 

33.  Where  the  agent  of  a  fraternal  order 
knowingly  participates  with  the  order  in  cir- 
culating the  libel,  he  becomes  jointly  liable 
with  it,  although  his  efforts  are  confined  to  a 
part  of  the  territory  in  which  the  order  cir- 
culfited  the  libel;  and  the  injured  party  may 
sue  both  him  and  the  order  in  separate  ac- 
tions, and  prosecute  both  actions  to  judg- 
ment. Morse  v.  Modern  Woodmen  of  Am- 
erica (Wis.)   1918D-480. 

34.  Satisfaction  of  one  judgment. — 
Though,  where  a  libel  is  the  joint  act  of 
several  persons,  actions  against  each  may  be 
prosecuted  to  judgments,  there  can  be  but  one 
satisfaction;  and,  when  one  judgment  is  sat- 


isfied, it  becomes  a  bar  to  the  other  actions. 
Morse  v.  Modem  Woodmen  of  America 
(Wis.)   1918D-4S0. 

35.  The  payment  into  court  of  the  amount 
recovered  against  the  agent  will  not  bar  the 
action  against  the  fraternal  order,  especially 
where  the  time  for  appeal  has  not  expired, 
as  the  right  to  bring  separate  actions  in- 
cludes the  right  on  the  part  of  plaintiff  to 
choose  which  judgment  he  will  accept  and 
satisfy.  Morse  v.  Modern  Woodmen  of 
America    (Wis.)    1918A-480. 

b.  Defenses. 

36.  Truth  as  defense.— Truth  of  the  state- 
ments made  is  a  defense  to  an  action  for  libel. 
McClintoek  v.  McClure  (Ky.)   I918E-96. 

37.  Defendant  admitting  the  speaking  of 
the  substance  of  the  words  charged,  though 
not  the  exact  words,  may  justify  the  speak- 
ing on  the  ground  of  their  truth.  Ray  v. 
Shemwell  (Ky.)   1918C-1122.         (Annotated) 

38.  Necessity  that  justification  be  broad  as 
charge. — In  an  action  for  libel,  a  defense  that 
a  part  of  the  statements  made  was  true  is 
incomplete,  since  the  justification  must  be  as 
broad  as  the  libel.  Putnam  v.  Browne  (Wis.) 
1918C-1085.  (Annotated) 

39.  Proof  of  the  truth  of  the  words  spoken 
is  a  good  defense  in  an  action  for  slander, 
but  the  justification  must  be  as  broad  and 
complete  as  the  misconduct  charged.  Grand 
Union  Tea  Co.  v.  Lord  (U.  S.)  19180-1118. 

(Annotated) 

40.  Words  substantially  true. — Newspapers 
are  not  held  to  the  exact  facts  or  the  most 
minute  details  of  transactions  which  they 
publish,  the  law  only  requiring  that  an  article 
be  substantially  true,  although  they  should 
exercise  due  care  in  gathering  and  publish- 
ing news.  State  Journal  Co.  v.  Redding 
(Ky.)    1918C-332.  (Annotated) 

41.  Where  a  newspaper  article  is  published 
in  good  faith  and  is  substantially  true,  the 
defense  is  complete,  although  the  publication 
is  inspired  by  malice  or  ill  will.  State 
Journal  Co.  v.  Redding  (Ky.)  1918C-332. 

(Annotated) 

42.  Where  defendant  pleads  justification  in 
an  action  for  libel,  only  the  substance  of  the 
alleged  libelous  words  need  be  proved  to  be 
true  to  sustain  the  defense,  so  that  proof  that 
plaintiff  used  $185  of  a  campaign  fund,  where 
the  statement  was  that  he  used  $385,  is  suffi- 
cient to  justifv  the  statement.  Putnam  v. 
Browne   (Wis.)'  1918C-1085.  (Annotated) 

43.  Evidence  showing  that  plaintiff  con- 
cealed and  carried  away  a  book  belonging  to 
defendant  publishing  company,  his  former 
employer,  and  claimed  by  him  to  have  been 
taken  by  mistake,  supposing  it  was  a  book 
which  he  had  a  right  to  take,  for  which  he 
was  arrested  and  later  discharged,  is  held 
to  be  suihcient  to  justify  the  publication  of 
a  newspaper  article  charging  him  with  theft 
and  giving  a  substantially  correct  account  of 
the  matter,  although  the  evidence  may  not 
have  been  sufficient  to  establish  his  guilt 
beyond  a  reasonable  doubt.  State  Journal 
Co.  V.  Redding    (Ky.)    19180-332. 

(Annotated) 


144 


ANN.  CAS.  DIGEST   (1018C-1918E). 


c.  Pleading. 

44.  Pleading  justification. — The  charge  in 
the  slanderous  words  complained  of,  "He  stole 
from  me,'  being  general,  and  not  specific,  the 
pleading  in  justification  must  aver  the  acts 
constituting  the  stealing,  to  give  plaintiff 
notice.     Ray  v.  ishemwell   (Ky.)   1918C-1122. 

45.  In  an  action  for  slander  for  using  the 
words,  ''He  is  a  damn  drunken  thief;  he  has 
stolen  my  steer,"  defendant's  answer  ad- 
mitting saying  of  the  plaintiff  "if  Alex  Cain 
had  sold  the  steer  it  was  the  same  as  steal- 
ing," and  alleging,  if  that  charges  him  with 
stealing  the  steer,  that  such  charge  is  true, 
does  not  plead  a  justification  because  of  the 
variance.     Cain  v.  Osier   (Iowa)   1918C-1126. 

(Annotated) 

46.  Plea  in  mitigation. — In  an  action  for 
slander,  a  plea  in  mitigation  must,  in  its 
nature,  be  a  confession  and  avoidance,  and 
not  a  pleading  of  some  other  matter  and  the 
justification  thereof,  and  there  is  no  error  in 
striking  out  a  plea  which  does  not  admit 
saying  "he  is  a  damned  drunken  thief;  he 
has  stolen  my  steer,"  nor  the  truth  of  these 
words  as  charged,  but  denies  it  and  alleges 
that  he  said  "if  Alex  Cain  sold  the  steer  it 
was  the  same  as  stealing,*'  and  if  that 
charges  plaintiff  with  stealing,  the  charge  is 
true,  as  it  does  not  allege  mitigating  cir- 
cumstances upon  whicli  defendant  may  repy 
Cain  V.  Osier  (Iowa)   19180-1126, 

47.  Amendment  to  plea. — In  an  action  for 
slander,  where  the  original  answer  pleads 
that  the  charges  made  by  defendant  against 
plaintiff  are  true  and  that  they  were  made 
in  good  faith  and  without  malice,  an  order 
striking  out  an  amendment  to  the  answer 
which  added  nothing  to  the  original  plea  of 
mitigation  and  did  not  affect  plaintiff's  char- 
acter is  not  error.  Cain  v.  Osier  (Iowa) 
1918C-1126. 

d.  Evidence. 

48.  Truth  of  charge. — In  an  action  for  libel 
by  imputing  to  plaintiff  a  hereditary  predis- 
position to  insanity,  by  a  writing  in  which 
the  defendant  stated  that  the  plaintiff's 
mother  had  lost  her  mind,  where  the  defense 
is  that  the  statements  of  the  letter  were 
true,  evidence  on  both  sides  of  the  question 
whether  the  mother  was  sane  or  insane  is 
admissible,  the  fact  that  defendant  acted 
reasonably  and  upon  sufficient  information 
not  depriving  plaintiff  of  the  right  to  intro- 
duce proof  of  his  mother's  sanity  upon  the 
primary  issue  of  whether  the  statement  was 
true  or  false.  McClintock  v.  McClure  (Ky.) 
1918E-96. 

49.  In  an  action  for  slander,  where  the  title 
to  a  steer  claimed  by  defendant  and  sold  by 
the  plaintiff  is  involved,  the  exclusion  of  tes- 
timony offered  by  defendant  to  show  the 
nature  of  the  plaintiff's  transfer  of  title  to 
the  steer  is  error.  Cain  v.  Osier  (Iowa) 
1918C-1126. 

50.  Partial  justification. — In  an  action  for 
circulating  a  libel,  in  which  plaintiff,  among 
other  charges,  is  charged  with  abandoning 
and  refusing  to  support  his  family  while  liv- 
ing at  a  certain  place,  it  is  error  to  withdraw 


from  the  jury's  consideration  the  testimony 
of  a  near  neighbor  that  plaintiff  was  absent 
from  his  home  half  of  the  time,  and  that 
his  family  was  destitute  during  eoiisiUeiable 
periods,  and  supplied  with  tlie  necessities  of 
life  by  the  charity  of  neighbors,  where  this 
testimony  was  based  on  personal  knowledge, 
obtained  by  the  witness  by  visiting  the  Jioiue 
a  number  of  times  and  participating  in  the 
relief  given,  Morse  v.  Aiodcrn  Wooainen  of 
America   (Wis.)   1918D-48U. 

51.  The  exclusion  of  such  evidence  is  neces- 
sarily prejudicial,  especially  where  the  jury 
returns  a  verdict  of  $14,800  actual  damages, 
and  $5,000  piinitory  damages.  Morse  v.  Mod- 
ern Woodmen  of  America   (Wis.)   l'J18D-480. 

52.  Evidence  showing  different  offense. — 
Evidence  that,  the  parties  being  partners, 
plaintiff  sold  an  article  in  his  possession 
belonging  to  the  firm,  and  refused  to  pay  de- 
fendant any  part  of  the  profits,  is  not  ad- 
missible in  justification  of  a  charge  of  lar- 
ceny, it  being  but  failure  to  pay  a  debt. 
Ray  V,  Shemwell  (Ky.)   1918C-li22. 

53.  Evidence  that  plaintiff  computed  the 
interest  on  defendant's  debt  to  him  at  much 
more  than  it  was,  and  defendant,  being  ig- 
norant, and  relying  thereon,  paia  it,  shows, 
at    most,   obtaining   property    by    false    pre- 

.tenses,  defendant  intending  to  part  not  only 
with  possession  thereof,  but  also  Avith  his 
right  of  property  therein,  and  so  is  not  ad- 
missible in  justification  of  a  charge  of  lar- 
ceny.    Ray   V.   Shemwell    (Ky.)    1918C-1122. 

54.  Sufficiency  of  evidence. — In  an  action 
for  slandering  plaintiff,  who  was  in  charge 
of  one  of  defendant's  stores,  by  saying  that 
his  stock  and  cash  were  short,  the  evidence 
is  held  to  be  institficient  to  show  that  his 
stock  was  short,  or  that  there  was  a  short- 
age in  the  cash,  at  least  in  such  amount  as 
would  justify  the  inference  that  he  had  mis- 
appropriated the  money,  with  such  a  degree 
of  certainty  as  to  warrant  the  court  in  hold- 
ing as  matter  of  law  that  the  language  com- 
plained of  was  true,  and  hence  the  direction 
"of  a  verdict  for  defendant  was  properly  de- 
nied. Grand  Union  Tea  Co,  v.  Lord  (U.  S.) 
1918C-1118. 

e.  Province  of  Court  and  Jury. 

55.  Privilege  as  question  of  law. — When  the 
occasion  and  attending  circumstances  are  not 
in  dispute,  the  question  of  privilege  is  for 
the  court.     Bolton  v.  Walker  (Mich.)  1918E- 

,  1007. 

56.  In  an  action  for  slander,  if  the  court 
finds  a  quasi  or  qualified  privilege,  the  ques- 
tions of  slander  or  no  slander,  malice  or  no 
malice,  are  usually  for  the  juiy;  but  the 
court  must  instruct  as  to  the  nature  and 
effect  of  the  qualified  privilege,  and  its  bear- 
ing on  the  jury's  consideration  of  the  facts 
in  issue.  Bolton  v.  Walker  (Mich.)  1918]i>- 
1007. 

f.  Instructions. 

57.  Defining  slander. — In  an  action  for  slan- 
dering a  person  in  charge  of  a  store  by  say- 
ing that  his  cash  and  stock  were  short,  an 
instruction  that  it  was  sufficient  to  constitute 


LIBEL  AXD  SLANDER. 


145 


slander  if  the  words  were  naturally  and  pre- 
sumably understood  to  charge  a  crime  or 
breach  of  trust  or  to  affect  plaintiff  in  his 
calling,  is  erroneous,  as  words  not  slanderous, 
but  merely  derogatory,  tend  to  affect  plain- 
tiff in  his  trade  or  calling.  Grand  Union 
Tea  Co.  v.  Lord   lU.  S.)   1918C-1118. 

58.  Interpretation  of  charges. — In  an  ac- 
tion for  slandering  a  person  in  charge  of  a 
store  by  saying  that  his  cash  and  stock  were 
short,  it  is  error  and  prejudicial  to  charge 
that,  if  defendant's  manager  spoke  of  plain- 
tiff the  defamatory  words  charged  in  the 
declaration  under  circumstances  alleged,  and 
if  such  words  were  false,  then  a  recovery 
might  be  had,  as  it  Avas  for  the  jury  to 
determine  whether  the  language  used  was 
an  accusation  of  crime  or  the  imputation 
of  conduct  amounting  only  to  irregularity  or 
negligence,  and  the  instruction  in  effect  told 
the  jury  that  the  words  spoken  necessarily 
imputed  tlie  commission  of  a  crime  and  were 
actionable  per  se.  especially  where  the  court 
further  charged  that  if  the  manager  slandered 
plaintiff  as  charged  in  the  declaration,  de- 
fendant was  liable,  and  refused  to  charge  that 
if  the  language  used  did  not,  according  to  its 
fair  meaning  under  the  circumstances,  charge 
plaintiff  with  larceny,  or  if  the  hearers  did 
not  understand  that  it  charged  him  with 
larceny,  but  that  it  simply  charged  him  with 
some  improper,  negligent,  or  careless  act,  not 
amounting  to  larcen.y,  then  defendant  was  not 
guilty.  Grand  Union  Tea  Co.  v.  Lord  (U.  S.) 
1918C-1118. 

59.  Such  error  is  not  cured  by  charging 
that,  in  determining  whether  or  not  the  lan- 
gxiage  used  imputed  a  criminal  ofiense.  the 
words  must  be  construed  in  their  plain  and 
popular  sense,  and  that  it  was  not  necessary 
that  the  manager  should  have  expressly 
charged  plaintiff  with  larceny  or  a  breach  of 
trust,  but  that  it  was  sufficient  if  the  charge 
consisted  of  a  statement  of  matters  which 
would  nat\irally  and  presumably  be  under- 
stood by  those  hearing  them  as  charging  a 
crime  or  breach  of  trust,  or  as  affecting  plain- 
tiff in  his  trade  or  calling,  as  this  implied 
that  the  words  were  slanderous  in  their  plain 
and  popular  sense,  and  failed  to  make  it  clear 
to  the  jury  that  the  meaning  of  the  words 
was  for  their  determination.  Grand  Union 
Tea  Co.  v.  Lord   (U.  S.)   1918C-1118. 

60.  "Substantial"  justification. — An  in- 
struction that  it  is  not  necessary  to  prove 
the  speaking  of  the  precise  words,  but  that 
they  must  be  "substantially"  the  same,  means 
that  they  must  be  substantially  the  same  in 
meaning  and  is  proper;  the  word  "substan- 
tially'" meaning  in  the  matter  of  substance 
rather  than  mere  form.  Cain  v.  Osier  (Iowa) 
1918C-1126. 

61.  Assumption  of  malice. — In  an  action 
for  libel,  where  the  publication  was  relieved 
from  the  presumption  of  malice  by  the  fact 
that  the  letter  was  qualifiedly  privileged, 
having  been  written  by  defendant  to  his  prin- 
cipals in  relation  to  their  business,  an  in- 
struction defining  plaintiff's  right  of  recov- 
ery, presuming  the  existence  of  malice,  is 
prejudicial  to  defendant.  McClintock  v.  Mc- 
Clure   (Ky.)   1918E-96. 

Ann.  Cas.  Dig.  1918C-E.— 10. 


62.  Request  containing  propositions  not 
covered  by  given  instructions. — Plaintiff  was 
in  charge  of  one  of  defendant's  stores,  and 
claimed  that  while  defendant's  manager  was 
making  an  inventory  he  told  a  friend  of  plain- 
tiff, who  inquired  for  plaintiff,  that  plaintiff 
was  short  in  his  cash  and  stock.  Defendant 
requested  an  instruction,  stating  plaintiff's 
claim,  and  stating  that  defendant  claimed 
that  -M.,  to  whom  the  alleged  slanderous 
statement  was  made,  was  a  friend  of  plain- 
tiff and  lived  in  the  same  house  with  him; 
that  defendant's  manager  was  endeavoring 
to  locate  plaintiff  and  get  some  explanation 
of  his  conduct,  and  that  the  statement  as  ta 
the  shortage  was  true,  and  made  in  good 
faith  and  without  malice;  that  proof  of  the 
truth  of  the  statement  was  a  complete  de- 
fense; that  the  burden  was  on  plaintiff  to 
establish  his  case,  and  he  must  show  that 
defendant  used  the  language  charged,  and 
the  jury  must  believe  this  language,  if  true, 
to  be  slanderous,  or  such  as  from  its  usual 
import  was  insulting  and  calculated  to  cause 
a  breach  of  the  peace,  or  there  could  be  no- 
recovery;  and  that  if,  after  hearing  the  evi- 
dence, the  jury  believed  the  stock  was  short 
and  the  cash  was  also  short,  the  verdict  must 
be  for  defendant,  whether  the  shortage  was 
due  to  carelessness,  ignorance,  lack  of  atten- 
tion, dishonesty,  or  other  cause.  It  is  held 
that  this  instruction,  in  substance,  should 
have  been  given,  as  it  presented  defendant's 
theory  of  the  case,  and  contained  nothing  ob- 
jectionable, either  as  to  matters  of  fact  in 
the  aspect  of  the  facts  claimed  by  defendant 
or  as  to  the  applicable  rules  of  law,  and  it 
included  propositions  which  defendant  was 
entitled  to  have  submitted  when  not  covered 
bv  the  instructions  given.  Grand  Union  Tea 
Co.  V.  Lord   (U.  S.)   1918C-1118. 

63.  Mitigation  of  damages. — In  an  action 
for  libel,  where  defendant  offers  an  instruc- 
tion on  the  question  of  mitigation  of  dam- 
ages, warranted  by  the  proof,  the  refusal  to 
submit  the  question  to  the  jury  is  prejudicial 
error.  McClintoek  v.  McClure'  (Ky.)  19181:- 
96. 

64.  In  an  action  for  slander,  where  the 
mitigating  facts  tended  to  negative  malice, 
an  instruction  that  mitigating  circumstances 
may  only  be  considered  in  relation  to  the 
allowance  of  exemplary  damages  is  not  er- 
roneous.  ,Cain  V.  Osier   (Iowa)   1918C-1126. 

g.  Damages. 

65.  Measure  of  damages. — Plaintiff,  if  en- 
titled to  recover  for  libel,  should  be  awarded 
such  sum,  as  compensatory  damages,  as  will 
fairly  and  reasonably  compensate  him  for 
any  injury  to  his  occupation  or  business, 
reputation  and  character,  by  reason  of  the- 
libel  and  the  consequent  cancellation  of 
plaintiff's  bonds  as  cashier  of  a  bank,  etc., 
and  for  humiliation  and  mental  distress. 
McClintoek  v.  McClure   (Ky.)  1918E-96. 

66.  In  an  action  for  libel  in  having  writ- 
ten a  letter  charging  plaintiff  with  a  hered- 
itary predisposition  to  insanity,  etc.,  the 
measure  of  damages  is  the  injury  resulting 
from    the    publication   of    the    letter,   rather 


146 


ANK  CAS.  DIGEST  (1918C-1918E). 


than  from  mental  suffering  resulting  to 
plaintiff  from  the  cancellation  of  surety  bonds 
on  him.  McClintock  v.  McClure  (Ky.) 
1918E-96. 

67.  Punitive  damages. — In  an  action  for 
libel  based  on  a  letter  qualifiedly  privileged, 
the  jury,  in  their  discretion,  may  award  puni- 
tive damages,  in  addition  to  compensatory 
damages,  not  to  exceed  the  amount  claimed 
in  the  petition.  McClintock  v.  McClure  (Ky.) 
1918E-96. 

68.  Verdict  held  excessive. — Evidence  in  an 
action  for  slander,  where  plaintiff  had  been 
charged  with  stealing  a  steer,  is  held  to  be 
insufficient  to  sustain  a  verdict  for  $2,500. 
Cain  V.  Osier  (Iowa)  1918C-1126. 

69.  In  an  action  for  circulating  a  circular 
which  characterized  plaintiff  as  a  mud  slinger, 
and  stated  that  the  tale  of  his  life  could  not 
well  be  told  around  the  neighbors'  firesides, 
that  he  deserted  his  wife  and  children,  and 
afterwards  obtained  a  divorce  on  perjured 
testimony,  that  he  did  not  visit  his  aged 
father  until  the  death  of  his  mother,  and 
that  his  unfilial  conduct  so  enraged  his 
father  that  he  disinherited  plaintiff,  and  made 
plaintiff  sign  over  his  interest  in  the  estate 
to  his  deserted  wife,  a  verdict  for  $14,800 
actual  damages,  reduced  by  the  trial  court 
to  $10,000,  and  $5,000  punitory  damages, 
cannot  be  permitted  to  stand,  especially 
where  the  jury,  in  an  action  against  de- 
fendant's agent  for  circulating  the  same  libel 
in  Wisconsin,  the  state  of  plaintiff's  resi- 
dence, returned  a  verdict  for  $1,  and  also  in 
view  of  St.  1915,  §  4569,  flxiog  the  maximum 
fine  for  a  criminal  libel  at  $250.  Morse  v. 
Modern  Woodmen  of  America  (Wis.)  1918D- 
480. 

70.  In  view  of  the  surprisingly  large  ver- 
dict, especially  as  to  exemplary  damages, 
suggesting  very  strongly  a  failure  to  give 
proper  consideration  to  the  evidence,  and  in 
view  of  the  erroneous  exclusion  of  evidence 
tending  to  show  the  truth  of  a  part  of  the 
charge,  a  new  trial  will  be  granted,  instead 
of  attempting  to  cut  down  the  damages,  and 
giving  options  to  the  parties  to  take  or  suffer 
judgment.  Morse  v.  Modern  Woodmen  of 
America  (Wis.)  1918D-480. 


LIBERTY  OF  CONTRACT. 

See  Constitutional  Law,  14-16. 


LICENSE. 

See  Easements. 

Injurv    to    licensees    by    electric    wires,    see 

Eleoteicity,  1-4,  6-8,  13,  14. 
Liability  for  injury  to  licensee  in  municipal 

public    assembly    hall,    see    Municipal 

COBPOBATIO>-S,  22-27. 

Naliure  of  interest  in  burial  lot,  see  Ceme- 
teries, 4. 

1.  Liability  of  licensee — Destruction  of 
-property  by  fire. — The  dwelling  house  upon 
plaintiff's  farm  was  destroyed  by  fire  while 
defendant  was  in  possession  of  it  by  permis- 


sion of  plaintiff's  tenant  who  was  entitled  to 
possession  under  his  lease.  Held,  that  de- 
fendant was  a  licensee  and  liis  possession  not 
wrongful;  held,  further,  that  plaintiff  was 
not  entitled  to  recover  for  the  loss  without 
proof  of  negligence.  Keithley  v.  Hettinger 
(Minn.)   1918D-376.  (Annotated) 

2.  Even  if  the  facts  warranted  the  applica- 
tion of  the  doctrine,  res  ipsa  loquitur,  tlie 
question  whether  defendant  was  negligent 
was  still  a  question  of  fact  for  the  jury,  and 
not  of  law  for  the  court.  Keithley  v.  Hettin- 
ger (Minn.)  1918D-376.  (Annotated) 

3.  Plaintiff  sued  for  the  loss  resulting  from 
the  fire,  and,  in  the  complaint,  also  set  forth 
another  independent  cause  of  action.  The 
jury  returned  a  general  verdict  for  plaintiff 
for  the  amount  allowed  upon  the  other  cause 
of  action,  but  included  nothing  therein  for 
the  loss  resulting  from  the  fire.  By  direction 
of  the  court  they  also  returned  a  special 
verdict  fi.xing  the  amount  of  loss  resulting 
from  the  fire.  The  jury  not  having  included 
such  loss  in  the  general  verdict,  and  not 
having  found  that  it  resulted  from  the  neg- 
ligence of  defendant,  plaintiff  is  not  entitled 
to  judgment  against  defendant  for  the 
amount  thereof.  Keithley  v,  Hettinger 
(Minn.)   1918D-376. 


LICENSES. 

See  Hawkers  and  Peddlers,  1-4:  Junk 
Deai^bs  and  Jl'xk  Shops,  1-4;  Phy- 
sicians AND  Surgeons.  1-8. 

Conclusiveness  of  statement  of  ownership)  of 
taxicab  in  registry  of  licenses,  see  Auto- 
mobiles, IS. 

Failure  to  comply  with  license  law  in  regard 
to  automobiles  as  barring  right  to  re- 
cover for  injuries,  see  Automobiles,  20, 
21. 

Power  of  committee  appointed  by  council  to 
arrange  for  display  of  fireworks  with- 
out license,  see  Theaters  and  Amuse- 
ments, 4. 

Validity  of  excise  tax  against  foreign  cor- 
porations, see  Corporations,  46. 

1.  Distinction  between  police  and  revenue 
measure. — A  license  tax  is  based  on  the  police 
power  of  the  state  to  regulate  or  prohibit  a 
particular  business,  and  not  to  raise  revenue, 
while  an  occupation  tax  is  primarily  intended 
to  raise  revenue.  Provo  Citv  v.  Provo  Meat, 
etc.  Co.   (Utah)   1918D-530.  ' 

2.  Power  to  regulate  as  including  power  to 
license. — Where  power  is  conferred  to  regu- 
late a  particular  business  or  calling,  the 
power  to  license  is  included  within  the  power 
to  regulate.  Provo  City  v.  Provo  Meat.  etc. 
Co.   (Utah)  1918D-530.  (Anr.otated) 

3.  Classification. — The  legislature  has  the 
right  to  make  separate  and  different  provi- 
sions for  distinct  classes  and  areas  in  the 
enactment  of  its  license  laws,  and  the  ex- 
ercise of  such  power  does  not  conflict  with 
the  constitutional  rights  to  the  equal  pro- 
tection of  the  laws,  or  to  due  process  of  law, 
if  the  regulations  operate  equally,  and  the 


LIEXS— LIFE  ESTATES. 


141 


limitations    are    not     clearly    unreasonable. 
State  V.  Shapiro  (Md.)  1918E-196. 

(Annotated) 

4.  Licensing  of  meat  dealers. — In  Comp. 
Laws  1907,  §  206x86  (Laws  1915,  c.  100), 
empowering  cities  to  license,  tax,  and  regu- 
late the  business  conducted  by  merchants, 
butchers,   etc.,   the    word   "butcher''   includes 

"the  occupation  of  a  retail  meat  dealer.  Provo 
City  V.  Provo  Meat,  etc.  Co.  (Utah)  1918D- 
530.        .  (Annotated) 

5.  Under  Comp.  Laws  1907,  §  206x43 
(Laws  1915,  c.  100),  empowering  cities  to 
provide  for  the  place  and  manner  of  sale  of 
meats,  the  city  has  power  to  impose  a  li- 
cense tax  upon  retail  meat  dealers.  Provo 
City  V.  Provo  Meat,  etc.  Co.  (Utah)  1918D- 
530*.  (Annotated) 

6.  Under  Comp.  Laws  1907,  §  206,  as  to 
regulation  and  taxation  of  merchants,  it  is 
within  the  power  of  a  city  to  impose  a  gen- 
eral merchant's  license  tax  upon  one  who  is 
engaged  in  a  general  merchandising  business, 
inckiding  the  sale  of  meats,  and  further  to 
impose  a  license  tax  upon  his  business  of 
selling  meat.  Provo  City  v.  Provo  Meat, 
etc.  Co.   (Utah)    19180-53*0.  (Annotated) 


LIENS. 

For  taxes,  see  Taxatiox,  35,  36. 
Of   building   and   loan    association    on   stock 
of    members,    see    Building    and    Loan 

ASSOCIATIONvS,    1-8. 

Of  judgment,  see  Judgments,  6-8. 
Of  attorneys,  see  Attokneys,  14-16. 
Perfecting  lien  on  mortgage  of  stock  of  goods, 

see  Chattel  Mortgages,  4,  5. 
Personal  decree  against  defendant  in  suit  to 

enforce   lien  where  lien  not  established, 

see  Judgments,  1. 
Provision  in  building  contract  for  retention 

of  payments  due  as  operating  to  give  to 

Bubcontractor  lien,  see  Assignments,  6. 


UFE  ESTATES. 

1.  Creation,  147. 

2.  Rights  of  Life  Tenant,    147. 

3.  Liabilities  of  Life  Tenant,  148. 

See   Doweb;    Remainder   and   Eeversions; 
Trusts  and  Trustees;  Wills, 

1.  Creation. 

1.  Effect  of  power  of  appointment. — A  gen- 
eral power  of  appointment  conferred  upon 
a  life  tenant  does  not  enlarge  his  estate. 
Harris  v.  Carolina  Distributing  Co.  (N.  0.) 
1918C-329. 

2.  Rights  of  Life  Tenant. 

2.  Cutting  or  sale  of  timber. — 'VSTiere,  be- 
fore the  commencement  of  the  life  estate, 
the  land  has  been  cultivated  for  the  produce 
of  salable  timber,  the  life  tenant  may  con- 
tinue the  cultivation  for  his  own  profit.  Poole 
V.  Union  Trust  Co.  (Mich.)  1918E-622. 


3.  By  the  common  law  the  life  tenant  was 
narrowly  restricted  in  the  taking  of  timber 
to  estovers  of  fuel  and  repairs,  save  where 
the  custom  of  the  estate  was  otherwise;  but 
in  this  country  it  is  the  general  rule  to  allow 
the  life  tenant  to  cut  timber  to  clear  the 
land,  provided  the  part  cleared  with  that  un- 
der cultivation  does  not,  as  compared  with 
the  remainder  of  the  tract,  exceed  the  pro- 
portion of  cleared  to  wooded  land  allowed  by 
good  husbandry,  and  that  the  value  of  the 
inheritance  is  not  thereby  materially  less- 
ened; and  the  right  to  the  proceeds  of  sales 
of  timber  follows  the  right  to  cut  the  tim- 
ber. Poole  v.  Union  Trust  Co.  (Mich.) 
1918E-622. 

4.  Under  a  testamentary  trust  of  property, 
consisting  in  part  of  unproductive  timber 
lands,  to  pay  the  income  to  a  life  tenant  with 
remainder  over  on  her  death  without  issue 
surviving,  where  it  appeared  that  there  had 
been  no  lumbering  business  on  the  lands,  that 
sales  by  the  testatrix  in  her  lifetime  were 
not  made  in  the  course  of  selling  timber,  but 
were  irregular,  unconnected  sales  of  tracts 
of  timber,  that  the  lands  had  been  purchased 
for  investment  and  resale,  and  that  the  in- 
heritance would  be  greatly  damaged  if  the 
trustees  should  sell  the  timber  off  the  land 
and  pay  the  proceeds  as  income  to  the  life 
tenant,  the  proceeds  of  sales  are  a  part  of 
the  principal  or  remainder.  Poole  v.  Union 
Trust  Co.    (Mich.)    1918E-622. 

5.  Under  such  trust  the  taxes  and  expenses 
of  carrying  the  unproductive  timber  lands, 
the  proceeds  of  sales  from  which  belonged  to 
the  principal  or  remainder  and  not  to  the 
life  tenant,  are  to  be  borne  by  the  remainder- 
man and  not  by  the  life  tenant,  in  exception 
to  the  general  rule  placing  the  tax  burden  on 
the  life  estate.  Poole  v.  Union  Trust  Co. 
(Mich.)   1918E-622. 

6.  Working  existing  mine..— Where  mines 
were  opened  or  the  leases  executed  before 
a  life  estate  commenced,  the  life  tenant  may, 
in  the  absence  of  restraining  words,  work  the 
mines  even  to  exhaustion  and  take  the 
profits.  Poole  v.  Union  Trust  Co.  (Mich.) 
1918E-622. 

7.  Opening  of  mine. — The  common-law 
rule  that  life  estates,  whether  conventional 
or  arising  by  operation  of  law,  are  impeach- 
able for  waste,  unless  the  instrument  creat- 
ing a  conventional  life  estate  expresses  a 
contrary   intention,   and   that    a   life   tenant 

>  cannot  open  new  mines,  does  not  prevail 
in  this  state.  Poole  v.  Union  Trust  Co. 
(Mich.)    1918E-622. 

8.  Royalty  on  mine. — ^Under  a  will  devis- 
ing a  share  of  the  residue  of  real  and  per- 
sonal property  in  trust  to  pay  over  the 
income  to  one  for  life,  royalties  on  mining 
leases  earned  previous  to,  but  payable  after, 
the  testatrix's  death,  are  payable  to  the  life 
tenant.  Poole  v.  Union  Trust  Co.  (Mich.) 
1918E-622. 

9.  Under  a  will  of  testatrix,  owning  an  un- 
divided share  in  mineral  lands  under  royalty 
leases,  devising  the  residue  of  a  one-half  in- 
terest inherited  from  her  former  husband  to 
their  son  in  fee  and  the  other  half  of  the 
residue  to  their  daughter  in  trust  for  life, 


148 


AXX.  CA«.  DIGEST  (1918C-1918E). 


■with  power  to  the  trustees  to  sell,  reinvest, 
etc.,  and  to  pay  the  income  of  the  principal, 
whatever  its  form,  to  the  daughter,  and  with 
remainder  over  on  her  death  without  issue  to 
the  son,  and  in  view  of  her  expressed  inten- 
tion that  they  should  enjoy  the  property  ac- 
cumulated by  their  father,  and  that  testatrix 
had  herself  treated  the  royalties  as  part  of 
her  regular  income,  the  royalties  on  the 
daughter's  share  are  to  be  considered  as 
income  belonging  to  her,  rather  than  as  a 
part  of  the  corpus  of  the  estate.  Poole  v. 
Union    Trust    Co.    (Mich.)    1918E-622. 

10.  Under  such  will,  where  the  personal 
assets  left  by  testatrix  exceeded  her  debts 
and  the  expenses  of  administration,  the 
income  payable  to  the  life  tenant  begins  to 
run  immediately  after  the  death  of  the  tes- 
tatrix, and  is  not  deferred  until  the  trust 
estate  is  delivered  by  the  executors  to  them- 
selves as  trustees.  Poole  v.  Union  Trust 
Co.    (Mich.)    1918E-622. 

11.  Allowance  from  corpus. — ^Under  a  will 
devising  life  estate  during  widowhood,  with 
the  right  to  use  "in  addition  to  the  income, 
so  much  of  the  principal  as  may  be  neces- 
sary" for  the  support  of  the  widow  and 
children  and  making  the  life  tenant  trustee, 
the  life  tenant  is  not  the  sole  judge  of  what 
is  necessary  for  support  of  herself  and  chil- 
dren, so  that  to  warrant  allowance  from  prin- 
cipal, there  must  be  a  finding  by  the  court 
that  it  is  necessary.  Hooker  v.  Goodwin 
(Ck)nn.)  1918D-1159.  (Annotated) 

12.  In  such  case,  though  the  Avidow  resign 
as  trustee,  she  retains  her  discretionary  pow- 
er to  determine  what  was  necessary,  which 
cannot  be  disturbed,  if  such  discretion  is  in 
fact  confined  to  what  is  reasonably  neces- 
sary. Hooker  v.  Goodwin  (Conn.)  1918D- 
11.59.  (Annotated) 

13.  In  such  case,  the  trustee  is  bound  to 
pay  to  the  widow,  on  her  application,  an 
amount  necessary  for  her  reasonable  and 
comfortable  support,  and  need  not  first  se- 
cure order  of  court  to  do  so.  Hooker  v. 
Goodwin    (Conn.)    1918r)-1159. 

14.  In  a  will  devising  a  life  estate  during 
widowhood,  with  the  right  to  use,  "in  addi- 
tion to  the  income,  so  much  of  the  principal 
as  may  be  necessary"  for  the  support  of  the 
widow  and  children,  "necessary"  means  all 
reasonable  necessaries  suitable  to  situation 
and  station  in  life  of  the  widow,  with  special 
reference  to  fact  that  she  was  testator's 
widow.  Hooker  v.  Goodwin  (Conn.)  1918D- 
11. W.  (Annotated) 

15.  Where  such  will  makes  the  life  tenant 
trustee,  her  discretion,  or  that  of  the  trus- 
tee appointed  on  her  resignation,  to  use 
whatever  of  the  principal  is  necessary  so  long 
as  legally  exercised,  cannot  be  interfered 
with.  Hooker  v.  Goodwin  (Conn.)  IfllSD- 
1159.  (Annotated) 

4 16.  Where  the  life  tenant,  under  a  will  en- 
titling her  to  so  much  of  principal  as  is 
necessary  for  her  support,  lived  prudently 
and  economically,  made  necessary  repairs,  im- 
proved the  estate,  and  more  than  doubled 
the  principal,  allowance  of  $1,000  from  prin- 
cipal of  $130,000,  when  she  was  indebted, 
ill,  and  in  need  of  care,  is  held  to  be  rea- 


sonable.   Hooker  v.  Goodwin  (Conn.)  1918D- 
1159. 

17.  If  the  trustee  under  will  devising  life 
estate  during  widowhood,  with  the  right  to 
tise  "in  addition  to  the  income,  so  much  of 
the  principal  as  may  be  necessary"  for  the 
support  of  the  widow  and  children,  and  mak- 
ing the  life  tenant  trustee,  is  about  to  vio- 
late or  has  violated  his  trust,  the  law  fur- 
nishes relief  to  the  remainderman  by  suit 
on  the  bond  required  by  Gen.  St.  1902,  §  311^ 
of  all  trustees,  unless  excused  bv  the  wilL 
Hooker  v.  Goodwin   (Conn.)    1918b-1159. 

(Annotated) 

18.  Reimbursement  for  repairs  or  improve- 
ments.— A  life  tenant  is  bound  to  maintain 
the  real  estate  and  buildings  in  a  reason- 
able condition,  and  is  not  entitled  to  be  re- 
paid from  the  principal  for  moneys  spent 
on  ordinary  repairs  of  a  barn.  Hooker  v» 
Goodwin    (Conn.)    1918D-1159. 

19.  But  he  is  entitled  to  repayment  for  ex- 
pense of  installing  a  bathroom,  which  would 
on  ordinary  repairs  of  a  barn.  Hooker  v. 
Goodwin    (Conn.)    1918D-1159. 

3.    Liabilities    of    Life    Tenant. 

20.  Pajnnent  of  taxes. — The  general  rule 
is  that  the  life  tenant  must  pay  all  ordinary 
taxes  on  the  property  during  the  continu- 
ance of  his  estate,  unless  there  is  some  pro- 
vision in  the  instrument  creating  the  estate 
relieving  him  of  this  liability.  Sheffield  v. 
Cooke    (R.  I.)    1918E-961. 

21.  Although  ordinary  taxes  and  the  ex- 
penses of  the  care  and  management  of  the 
capital  are  charges  on  the  life  estate,  Avhere 
taxes  are  assessed  against  unproductive  real 
estate  they  are  not  chargeable  to  the  life 
tenant.    Sheffield  v.  Cooke  (R.  L)  1918E-961. 

(Annotated) 

22.  Taxes  assessed  against  the  unproduc- 
tive part  of  said  estate  should  be  charged 
to  the  corpus  of  the  estate.  Sheffield  v. 
Cooke   (R.  I.)    1918E-961.  (Annotated) 

23.  An  assessment  for  a  public  improve- 
ment not  being  an  ordinary  tax,  the  ques- 
tion whether  it  must  be  borne  by  the  life 
tenant  or  remainderman,  or  apportioned  be- 
tween them,  depends  upon  the  circumstances 
and  probable  duration  of  the  improvement 
as  compared  with  the  expectancy  of  life  of 
the  life  tenant.  Sheffield  v.  Cooke  (R.  I.) 
1918E-961. 

24.  It  is  a  general  rule  that  municipal 
assessments  for  permanent  improvements  up- 
on land  are  apportionable  between  the  life 
tenant  and  the  remainderman  according  to 
the  circumstances  of  the  case,  their  respec- 
tive interest  in  the  property,  and  the  terms 
of  the  will  or  other  instrument  by  which 
the  life  estate  is  separated  from  the  re- 
mainder, and  in  the  proportion  which  the 
value  of  the  life  estate  bears  to  the  entire 
estate.  Sheffield  v.  Cooke  (R.  L)  1918E- 
961. 

25.  Where  an  estate  in  fee  simple  was 
subject  to  an  executory  limitation  and  pow- 
er of  sale  in  trustees,  there  being  no  way 
of  valuing  the  respective  interests  in  the- 
estate,  the  payment  by  the  trustees  of  the 


LIFE  Ils^SURANCE. 


149 


<ost  of  permanent  improvementB  out  of 
funds  realized  from  the  sale  of  unproductive 
real  estate  is  in  itself  an  equitable  appor- 
tionment of  the  assessment.  Sheffield  v. 
Cooke  (R.  L)  1918E-961. 


LIFE  INSURANCE. 

1.  Payment  of   Premiums,   149. 

2.  Warranties  and  Representations,  149. 

3.  Construction  of  Policy,    149. 

4.  Proof  of  Death,  149. 

5.  Evidence,  149. 

See   Beneficial  Associations;    Ixsur-vnce. 

Admissibility  of  evidence  of  amount  of  life 
insurance  in  action  for  death  of  insured 
by  falling  down  elevator  shaft,  see 
Death  by  Wrongful  Act,  14. 

Admissions  and  declarations  of  insured,  see 
Admissions  and  Declarations,  3-6,  16. 

Presumption  of  death  of  insured,  see  De-\th. 
1. 

What  law  governs  policy  issued  by  foreign 
company,  see  Conflict  of  Laws,  2-4. 

1.  Payment  of  Premiums. 

1.  Taking  of  note  as  discrimination  by  in- 
surer.— The  acceptance  by  an  insurer  of  a 
note  for  a  premium  thereby  extending  the 
time  of  payment  does  not  constitute  a  vio- 
lation of  a  statute  forbidding  discrimina- 
tion or  distinction  in  favor  of  individuals 
between  insurants  of  the  same  class.  French 
V.  Columbia  L.  etc.  Co.    (Ore.)   1918D-4<S4. 

(Annotated) 

2.  Nonpayment  of  premium  note. — Where, 
after  nonpayment  of  a  premium  when  due 
and  giving  by  insured  of  a  note  for  same, 
which  provides  that  if  not  paid  when  due 
the  policy  shall  lap?;e  and  the  note  shall  be 
due  in  an  amount  to  cover  only  the  pro 
rata  premium  to  the  date  of  cancellation,  and 
the  note  is  not  paid  when  due,  the  policy 
lapses.  French  v.  Columbia  L.  etc.  Co.  (Ore.) 
1918D-484. 

3.  .Waiver  of  forfeiture. — "A  forfeiture  in- 
curred by  the  holder  of  a  life  insurance 
policy  or  contract  is  waived,  if  the  company, 
with  knowledge  of  the  facts,  subsequently 
collects  premiums,  dues  or  assessments  on 
account  of  tlie  contract,  and  retains  them 
without  objection  until  after  the  death  of 
the  insured."  ^Modern  Woodmen  of  America 
V.  Berry   (Xeb.)    1918D-302.  (Annotated) 

2.  Warranties  and  Representations. 

4.  Agreement  as  to  amount  of  surplus. — 
When  a  life  insurance  company  stipulated  a 
certain  amount  of  surplus  payable  to  insured 
after  twenty  years,  it  is  immaterial  that  the 
company  could  not  then  know  what  surplus 
the  policy  would  earn  in  that  time.  For- 
man  v.  Mutual  L.  Ins.  Co.   (Ky.)   1918E-880. 

5.  Wliere  an  insurance  company  in  a  writ- 
ten "illustration"  attested  by  its  officers, 
which  it  attached  to  plaintiff's  policy,  stated 
a  definite  amount  of  surplus  payable  at  the 
end  of  twenty  years,  the  policy' being  silent 


as  to  this,  the  company  is  bound  to  pay 
amount  stipulated.  Forman  v.  Mutual  L. 
Ins.   Co.    (Ky.j    1918E-380.  (Annotated) 

6.  Illustration  of  results  as  part  of  policy. 
— \Miere  a  written  "illustration"  of  the  sur- 
plus plaintiff  would  receive  upon  his  life 
policy  was  officially  attested  in  same  hand- 

'  writing  as  policy,  as  an  inducement  to  his 
taking  it,  and  was  pasted  to  policy  when 
plaintiff'  received  it,  it  is  held  that  it  was 
intended  as  and  was  a  part  of  the  contract. 
Forman  v.  Mutual  L.  Ins.  Co.  (Kv.)  1918E- 
880.  (Annotated) 

3.  Construction  of  Policy. 

7.  Occupation  of  insured. — A  decedent  who 
had  not  been  employed  and  who  had  not 
received  compensation  as  a  bartender,  though 
he  may  for  another  occasionally  have  waited 
upon  the  customers  of  a  saloon  as  an  ac- 
commodation to  the  proprietor,  was  not  a 
saloon  bartender  within  the  meaning  of  the 
prohibitive  provision  of  the  contract  be- 
tween plaintiff,  a  mutual  benefit  insurance 
society,  and  the  insured.  Modern  Woodmen 
of  America  v.  Berry  (Neb.)   1918D-302. 

8.  Attached  paper. — Where  a  life  policy  is 
delivered  by  insurer  with  a  paper  attached 
thereto,  it  will  be  assumed  that  it  was  at- 
tached by  the  home  office  at  the  time  policy 
was  attested  by  the  offi:cers.  Forman  v.  Mu- 
tual  L.   Ins.   Co.    (Ky.)    1918E-880. 

9.  Interest  of  beneficiary. — ^A  beneficiary 
whose  rights  are  dependent  upon  the  will  of 
the  insured  acquires  no  vested  right  until 
the  death  of  the  insured,  but  only  a  mere 
expectancy  depending  upon  the  will  of  the 
insured.  Rosman  v.  Travelers'  Ins.  Co.  (Md.) 
1918C-1047. 

4.  Proof  of  Death. 

10.  Waiver. — Where  a  mutual  benefit  in- 
surance company  refuses  to  furnish  its  forms 
for  proof  of  death  to  plaintiff,  it  waives  the 
requirement  of  its  policy  that  such  proofs 
shall  be  made  on  blanks  furnished  by  it. 
Page  V.  Modern  Woodmen  of  America  (Wis.) 
1918D-758. 

11.  Notice  in  plea  of  failure  to  furnish 
proofs  of  loss. — In  an  action  against  a  fra- 
ternal benefit  insurance  organization,  where 
the  defendant  admitted  that  proofs  of  death 
and  of  the  plaintiff's  claim  were  filed  in  due 
season,  received  by  the  proper  officers,  acted 
upon,  and  payment  refused,  under  circuit 
court  rule  7,  subd.  "d,"  providing  that  in 
suit  upon  an  insurance  policy,  if  the  in- 
surer shall  rely  on  failure  to  furnish  any 
proof  of  loss,  as  required  by  the  policy,  there 
shall  be  added  to  the  plea  a  notice  plainly 
indicating  the  facts  relied  on,  the  defense 
that  plaintiff's  proofs  of  death  were  not  sat- 
isfactory under  the  policy  was  not  open  to 
defendant,  as  it  had  given  no  notice  thereof. 
Gilchrist  v.  Mvstic  Workers,  etc.  (Mich.) 
1918C-7o6. 

5.  Evidence. 

12.  Evidence. — In  an  action  on  a  policy  de- 
fended  on   the   ground   of   suicide,   excepted 


150 


ANN.  CAS.  DIGEST  (1918C-1918E). 


from  the  risks,  questions  concerning  in- 
sured's conversations  with  his  brother  are 
properly  excluded,  where  the  brother  was  not 
a  party,  and  was  not  produced  as  a  witness 
80  he  could  be  impeached.  Rosman  v.  Travel- 
ers' Ins.  Co.  (Md.)  1918G-1047.     (Annotated) 

13.  Coroner's  verdict  not  included  in  proofs 
of  loss. — In  an  action  on  a  life  policy,  where 
all  of  the  proofs  of  death  furnished  by  plain- 
tiff were  verified  June  6th  and  forwarded 
and  filed  with  defendant  benefit  association 
June  0th,  he  having  on  July  14th  thereafter 
sent  on  to  defendant  at  its  request  a  copy  of 
the  coroner's  verdict,  sucli  verdict  is  not 
furnished  by  plaintiff  as  part  of  his  proofs 
of  death,  and  is  not  admissible  in  evidence  as 
an  admission.  Gilchrist  v.  Mystic  Workers, 
etc.    (Mich.)    1918C-756. 

14.  Self-serving  declaration. — In  an  action 
o«  a  policy  defended  on  the  gi-ound  of  suicide 
excepted  from  the  risks,  the  insured's  state- 
ment to  his  wife  and  beneficiary  in  a  con- 
versation several  days  after  the  occurrence 
that  he  had  made  a  mistake,  and  had  taken 
bichloride  tablets  thinking  that  he  was  tak- 
ing aspirin,  is  in  the  nature  of  a  self-serving 
declaration  and  inadmissible.  Rosman  v. 
Travelers'  Ins.  Co.    (Md.)   1918C-1047. 

(Annotated) 

15.  Evidence  to  show  motive. — In  an  ac- 
tion on  a  policy  issued  to  an  agent,  defended 
on  the  ground  of  suicide,  excepted  from  the 
risks,  evidence  that  the  agent  had  delivered 
notes  to  the  insurer  piu-porting  to  have  been 
given  by  policyholders  for  premiums  due  on 
policies  sold,  which  had  never  been  executed 
by  the  parties  whose  names  were  signed 
thereto,  in  connection  with  the  agents  con- 
versation that  he  had  lost  money  in  gamb- 
ling, and  had  bought  poison  with  suicidal 
intent,  is  admissible  to  show  motive.  Ros- 
man V.  Travelers'  Ins.  (Do.  (Md.)  1918C- 
1047.  (Annotated) 

16.  Sufficiency  of  evidence. — Evidence  in 
an  action  on  a  policy  is  held  to  make  the 
insured's  suicide,  a  risk  excepted  from  the 
policy,  a  question  for  the  jurv.  Rosman  v. 
Travelers'  Ins.  Co.    (Md.)    1918C-1047. 

17.  Effect  of  presumption  of  death. — ^Where 
evidence  is  sufficient  to  give  rise  to  the  legal 
presumption  of  death  from  absence  of  the 
insured,  it  is  error  to  submit  to  the  jury 
the  issue  whether  he  is  dead,  but  plaintiff 
is  entitled  to  directed  verdict  in  her  suit  on 
a  policy  of  mutual  benefit  insurance  on  his 
life.  Page  v.  Modem  Woodmen  of  America 
(Wis.)   1918r)-756. 


UGHTING    DISTRICTS. 

1.  Territory  which  may  be  included. — Un- 
der Alt  March  20.  1909  (St.  190!).  p.  or^l), 
authorizing  the  formation  of  lighting  dis- 
tricts in  unincorporated  towns  and  villages, 
a  county  board  of  supervisors  cannot  on  peti- 
tion of  the  residents  of  a  town  or  villag-e  em- 
bracing sixty-four  acres  of  land,  order  the 
incorporation  of  a  lighting  district  embracing 
over  seventy  square  miles  of  territory  and 
50,000  acres  sparsely  settled  and  devoted  to 


agricultural  purposes,  or  vacant  and  unoccu- 
pied, in  the  country  adjacent  to  such  village 
or  town.  People  v.  Van  Xuys  Lighting  Dist. 
(Cal.)   1918D-255. 

2.  Curative  Act  May  29,  1915  (St.  1915,  p. 
939),  declaring  that  every  lighting  district 
established  under  tiie  provisions  of  Act  March 
20,  1909  (St.  1909,  p.  551),  by  resolution  of 
board  of  supervisors,  is  a  valid  district  from 
the  date  of  such  order,  and  that  all  proceed- 
ings be  ratified,  affirmed,  and  declared  legal, 
is  ineffective  to  validate  the  inclusion  in 
such  lighting  district  of  large  areas  of  farm- 
ing lands.  People  v.  Van  Nuys  Lighting 
Dist.    (Cal.)   1918D-255. 

3.  Under  Act  March  20,  1909  (St.  1909,  p. 
551),  authorizing  the  formation  of  lighting 
districts  by  unincorporated  towns  and  vill- 
ages, the  formation  of  such  districts  is  au- 
thorized only  within  the  limits  of  unincor- 
porated towns  or  villages,  and  no  authority 
is  given  for  the  formation  of  a  district, 
including  large  tracts  of  farm  land  not 
inhabited  as  a  village;  the  word  ''town" 
meaning  any  large  collection  of  houses  and 
buildings,  public  and  private,  constituting  a 
distinct  place  with  a  name,  and  the  word 
"village"  meaning  any  small  aggregation  of 
houses  in  the  county,  being,  in  general,  less 
in  number  than  in  a  town  or  city  and  more 
than  in  a  hamlet.  People  v.  Van  Nuys  Light- 
ing Dist.  (Cal.)  1918D-255.  (Annotated) 


LIGHTNING. 

Judicial  notice  of  tendency  of  metal  to  at- 
tract lightning,  see  Evidence,  2. 

Lightning  stroke  as  industrial  accident,  see 
Master  axd  Sebvant,  12. 

Lightning  stroke  as  injury  arising  out  of 
and  in  course  of  employment,  see  Mas- 
ter AND  Servant,  16. 


LIMITATION   OF   ACTIONS. 

Against  action  for  accounting  of  partnership 

affairs,  see  Partnership,  7-8. 
In   action    for    death    by   wrongful    act,    see 

Death  by  Wrongful  Act,  1-3. 
Limitation     of     time     for     presentation     of 

claim  against  state,  see  States,  2. 
Suit  by  executor  to  set  aside  assignment  of 

mortgage   between    attorney   and   client, 

see  Attorneys,  4,  5. 

1.  Construction  of  statutes. — The  statute 
of  limitations,  like  any  other  statute,  is  to 
be  construed  according  to  the  manifest  in- 
tention of  the  legislature,  and,  in  ascertain- 
ing such  intention,  the  language  used  should 
be  construed,  if  possible,  according  to  the 
usual  meaning  of  the  words  used.  Wren  v. 
Dixon   (Xev.)   1918D-1064. 

2.  Trustee  and  cestui  que  trust. — ^When- 
ever the  right  of  action  in  a  trustee  with  the 
legal  title  is  barred  by  limitations,  the  right 
of  the  cestui  que  trust  is  also  barred,  but, 
if  the  legal  title  be  in  the  cestui  que  trust, 
the  statute  of  limitations  which  might  nm 
against    the    trustee    will    not    constitute    a 


LIMITATIOX  OF  LIABILITY— LIS  PENDENS. 


151 


bar  against  the  cestui  if  he  be  under  disabil- 
ity.    Wren  v.  Dixon    (Nev.)    1918D-1064. 

3.  Executor  as  trustee. — Under  Rev.  Laws, 
§  5911,  providing  that  every  person  to  whom 
letters  testamentary  or  of  administration 
shall  have  issued  shall  execute  a  bond  with 
a  penalty  not  less  than  the  value  of  the  per- 
sonal property,  including  rents  and  profits, 
and  may  be  required  to  give  an  additional 
bond  whenever  the  sale  of  realty  is  ordered, 
the  relationship  of  trustee  and  cestui  que 
trust  between  the  executor  or  administra- 
tors and  the  heirs  is  not  created  in  so  far 
as  the  same  might  apply  to  the  realty  of  an 
estate,  so  that  the  rule  that  a  statute  of 
limitations  running  against  a  trustee  hold- 
ing the  legal  title  to  realty  runs  also  against 
the  cestui  does  not  apply.  Wren  v.  Dixon 
(Xev.)  .1918D-1064. 

4.  Suit  for  contribution. — A  surety  in 
whose  favor  the  statute  of  limitations  has 
not  run,  who  has  done  nothing  to  suspend 
its  operation,  and  who  has  been  compelled 
to  pay  the  debt  of  his  principal  may  exact 
contribution  from  a  cosurety  in  another 
state,  though  under  the  laws  thereof  the 
creditor's  claim  against  the  latter  was  barred 
when  the  principal's  debt  was  paid.  Frew 
V.    Scoular    (Xeb.)    1918E-511.      (Annotated) 

5.  Action  to  recover  mining  claim. — Under 
Act  Cong.  July  26,  1866,  c.  262,  14  Stat.  252, 
providing  for  the  patenting  of  mining  claims. 
Rev.  Laws,  §  4951,  providing  that  no  action 
to  recover  mining  claims  shall  be  maintained 
unless  plaintiff  or  those  under  whom  he 
claims  was  seized  or  possessed  of  such  claim 
within  two  years  before  the  commencement 
of  such  action,  and  section  4952,  providing 
that  no  cause  of  action  upon  title  to  real 
property  shall  be  effectual  unless  the  person 
prosecuting  the  action  was  seized  or  pos- 
sessed of  the  premises  in  question  within 
five  years  before  the  commission  of  the  act 
in  respect  in  which  the  action  is  pi'osecuted, 
and  section  4953,  referring  to  mining  claims 
as  such,  enacted  subsequent  to  the  federal 
statute,  applied  to  patented  as  well  as  un- 
patented mining  claims,  and  an  action  to  re- 
cover a  patented  claim  must  be  commenced 
within  two  years  from  the  time  when  plain- 
tiff' was  seized  or  possessed  of  such  claim. 
Wren  v.   Dixon    (Xev.)    1018D-1064. 

6.  Interruption  of  statute. — Rev.  Laws, 
§  4946,  provides  that  civil  actions  can  only 
be  commenced  within  the  periods  prescribed 
in  the  act,  after  the  cause  of  action  has  ac- 
crued, except  where  different  limitation  is 
prescribed  by  statute.  Section  4951  provides 
that  no  action  to  recover  a  mining  claim  shall 
be  maintained  unless  plaintiff  was  seized 
or  possessed  thereof  within  two  years  before 
the  commencement  of  such  action,  defining 
occupation  and  adverse  possession,  and  ex- 
tending the  provisions  of  the  act  applicable 
to  other  real  estate  to  mining  claims,  pro- 
vided that  in  such  application  "two  years" 
shall  be  intended  when  "five  years"  is  used, 
and  section  4952  provides  that  no  cause  of 
action  to  recover  real  property  shall  be  ef- 
fectual, unless  the  person  prosecuting  the 
action  was  seized  or  possessed  of  tlie  premises 
•within  "five  years"  before  action   was  com- 


menced, and  section  4966  provides  that,  if 
one  entitled  to  commence  an  action  to  re- 
cover real  property  shall  be  a  minor,  the 
time  of  disability  is  no  part  of  the  time 
limited  for  the  commencement  of  such  ac- 
tions, which  may  be  commenced  within  two 
years  after  the  removal  of  disability.  It  is 
held  that,  by  interpolation,  section  4951  was 
to  be  read  as  if  providing  that,  if  a  person 
to  whom  an  action  to  recover  a  mining  claim 
accrues  is  a  minor,  the  period  of  disability 
shall  not  be  part  of  the  time  limited  for  the 
commencement  of  such  action,  which  may  be 
commenced  within  two  years  after  the  dis- 
ability ceases.  Wren  v.  Dixon  (Nev.)  1918D- 
1064. 

7.  Minor  heirs  of  one  who  had  duly  pat- 
ented a  mining  claim  were  entitled  to  notice 
of  the  hostile  character  of  defendant's  posses- 
sion, which  notice  could  not  be  given  thent 
until  they  were  capable  in  law  of  receiving 
it;  so  that,  under  the  statute  (Rev.  Laws, 
§  4951  et  seq.),  they  might  commence  an 
action  to  recover  it  within  two  years  after 
majority,  when  they  were  chargeable  with 
notice.     Wren  v.  Dixon   (Nev.)    1918D-1064. 


LIMITATION  OF  LIABILITY. 

Of  carriers  of  goods,  see  Cabbies  of  Goods, 

6-8. 
Of  carriers   of  live  stock,   see  Caebiebs  op 

Live  Stock,  1-3. 
Of  telegraph  company,  see  Telegraphs  and 

Telephones,  1-3. 


LINEMAN. 

Injury  to,  see  Electbicitt,  5,  10,  15,  16. 

LIQUORS. 

See  II7T0XI0ATING  LiQUOBS. 


LIQUOR    SALOON. 

See  WoEDS  and  Phbases,  7. 

As  place  of  public  accommodation  In  statute 
forbidding  denial  of  rights  or)  account  of 
race  or  creed,  see  Civil  Rights,  1,  2. 


LIS  PENDENS. 

1.  Mortgagee  taking  possession. — A  mort- 
gagee of  personal  property  who  takes  pos- 
session thereof  under  an  agreement  with 
the  moi-tgagor,  pending  litigation  concern- 
ing a  lien  thereon,  takes  the  property  sub- 
ject to  the  rights  of  the  lien  claimant  as 
settled  bv  the  final  decree  or  judgment. 
Hubbard  V.   Johnson    (Wash.)    1918C-84. 

(Annotated) 

3.  Purchaser  from  party  to  action. — Where 
the  purchaser  of  land  from  a  party  to  a 
pending  suit  involving  the  title  thereto  ex- 
ecutes a  mortgage  or  trust  deed  thereon, 
without  warranty  of  title,  and  the  title  of 


152 


AN^^  CAS.  DIGEST  (1918C-1918E). 


his  grantor  is  thereafter  decreed  in  such 
suit  to  be  void,  such  purchaser's  title  and 
the  lien  created  by  hira  fail  also,  whether 
he  was  a  party  to  the  suit  or  not.  Linn  v. 
Collins   (W.  Va.)   19180-86.  (Annotated) 

3.  If  the  same  land  is  later  sold  and  con- 
firmed by  decree  in  such  pending  suit  to  a 
bona  fide  purchaser,  who  receives  a  deed 
from  a  commissioner  of  count,  he  may  tlien 
sell  to,  and  invest  good  title  in,  the  person 
who  previously  purchased  pending  the  suit, 
and  if  his  purchase  is  made  in  good  faith,  he 
takes  the  land  discharged  of  the  lien  which 
he  theretofore  attempted  to  create.  Linn  v. 
Collins    (W.  Va.)    1918C-86. 

4.  Such  transaction  does  not,  in  the  ab- 
sence of  other  evidence,  import  fraud  upon 
the  creditors  of  such  pendente  lite  purchaser. 
Linn  v.  Collins   (W.  Va.)   1918C-86. 

5.  Purchaser  from  person  not  party. — 
Where  a  lumber  company,  when  it  pur- 
chased lands,  had  no  notice  by  a  lis  pendens 
that  affected  its  title,  because  it  did  not 
claim  under  any  title  derived  from  the  party 
in  whose  hands  the  land  was  attached,  the 
record  title  under  which  the  lumber  company 
claimed  being  in  another,  while  inquiry  as 
to  the  title  of  the  part}'  from  whom  the 
lumber  company  bought  would  have  disclosed 
to  it  that  he  had  a  perfect  record  title  to  the 
lands  by  virtue  of  his  quitclaim  deed  from 
the  party  holding  record  title,  though  it  held 
under  a  quitclaim  deed,  the  lumber  company 
is  entitled  to  protection  as  an  innocent  pur- 
chaser.     Case   V.    Caddo    River    Lumber    Co. 

(Ark.)    1918C-80.  (Annotated) 

6.  Failure  to  record  deed  before  suit  com- 
menced.— A  grantee  in  a  deed  executed  by  a 
grantee  of  a  grantor  who  had  previously 
executed  a  mortgage  duly  recorded  occupies 
the  position  of  a  purchaser  pendente  lite, 
and  he  and  his  subsequent  grantees  are 
chargeable  with  notice  of  the  foreclosure 
proceeding  where  the  deed,  though  executed 
prior  to  the  foreclosure  suit,  was  not  placed 
of  record  until  more  than  two  months  there- 
after, and  not  within  the  time  allowed  by 
the  registry  statute.  Wolfenberger  v.  Hub- 
bard  (Ind.)   1918C-81.  (Annotated) 

7.  Where  a  party  procures  a  conveyance 
of  real  estate  to  be  made  to  him  by  means  of 
false  and  fraudulent  representation,  of  which 
act  the  original  vendor  has  no  notice,  and 
thereafter  conveys  such  real  estate  to  a  third 
party,  who  withholds  such  deed  from  regis- 
tration and  recordation  until  after  suit  is 
filed  to  cancel  such  convej'ance  to  his  vendor, 
and  notice  of  lis  pendens  is  filed,  such  pur- 
chaser, under  section  4261,  Code  1915.  is  a 
purchaser  pendente  lite.  Wilson  v.  Robinson 
<N.  Mex.)    1918C-49.  (Annotated) 

LOAN   BROKERS. 

See  Brokers,  13. 

]X>ANS. 

Payment  of  wages  by  agreement  with  em- 
ployer as  entitling  one  to  lien  for  em- 
ployee's* labor,  see  Mechanics'  Liens, 
6-9. 


LOCAL    OPTION. 

See  Elections. 

1.  Validity  of  statute— Prohibition  of  pool 
halls.— The  Pool  Hall  Law  (Acts  33d  Leg. 
c.  74  [Vernon's  Sayles'  Ann.  Civ.  yt.  1914, 
arts.  6319a-6319n]),  providing  for  a  peti- 
tion to  the  commissioners'  court  of  a  county 
and  requiring  it  to  order  an  election  on  a 
petition  signed  by  the  requisite  number  of 
voters  of  a  county  precinct  or  political  sub- 
division, on  the  question  of  prohibiting  the 
maintenance  of  pool  halls  within  the  terri- 
tory for  which  the  election  is  held,  and  pro- 
viding that,  where  the  election  is  in  favor 
of  prohibition,  any  person  thereafter  operat- 
ing a  pool  hall  therein  shall  be  subject  to 
fine  or  imprisonment,  is  not  unconstitutional 
as  a  delegation  of  the  legislative  power  to 
enact  a  law,  which  the  legislature  must  alone 
exercise.     Ex  parte  Mode  (Tex.)   1918E-84.5. 

(Annotated) 

2.  Such  law  does  not  violate  Const,  art.  1, 
§  28,  restricting  the  power  to  suspend  laws 
to  the  legislature,  and  especially  prohibiting 
the  exercise  of  such  power  by  any  other 
body;  since,  if  there  be  any  suspension  of 
the  law,  it  is  a  law  passed  by  the  legislature 
that  is  s\ispended  on  the  happening  of  the 
contingency  of  a  vote  against  its  operation. 
Ex  parte  Mode   (Tex.)   1918E-845. 

(Annotated) 


LODGES. 

See  Beneficial  Associations. 

LOGS   AND   LUMBER. 

See  Trees  and  Timber. 

LOST  INSTRUMENTS. 

Duplication  of  lost  stock  certificate,  see  Cor- 
porations, 36. 

1.  Necessity  of  indemnity  bond. — In  an 
action  to  enforce  the  liability  of  corporate 
officers  arising  from  the  incurring  of  debts 
by  the  corporation  while  less  than  half  its 
capital  stock  was  subscribed,  as  provided 
for  by  St.  1913.  §  1774n,  the  inclusion,  in 
the  judgment  of  the  amount  of  a  lost  note 
orally  proven  under  the  provision  therefor 
of  St.  1913.  §  4190,  is  improper,  where  the 
court  did  not  require  plaintiff  to  give  an 
indemnity  bond  to  the  adverse  parties  under 
the  requirement  therefor  of  section  4191. 
Weston  V.  Dahl    (Wis.)    1918C-922. 

(Annotated) 

2.  Presumptions  and  burden  of  proof. — ^In 
a  suit  by  an  executor  to  collect  a  note,  al- 
leged to  be  payable  to  his  testator,  lost  and 
unpaid,  the  burden  is  on  him  to  prove  its 
due  execution,  contents,  and  loss.  Linn  v. 
Collins   (W.  Va.)   1918C-86. 

3.  Where  the  maker  of  such  note  pleads 
payment,  he  bears  the  burden  of  proving  it, 


MACHIXEKY— MARRIAGE. 


153 


as  in  other  cases.    Linn  v.  Collins  (W.  Va.) 
1918C-86. 

4.  It  not  appealing  whether  the  note  "was 
negotiable  or  not,  the  presumption  is  that 
it  was  not  negotiable.  Linn  v.  Collins  (W. 
Va.)   1918C-86. 

5.  The  due  execution  and  contents  of  such 
note  being  clearly  proven,  the  testimony  of 
the  executor  that  he  searched  for  it  among 
the  papers  of  his  testator's  estate,  and  was 
not  able  to  find  it,  is  sufficient  proof  of  its 
loss.    Linn  v.  Collins  (W.  Va.)  1918C-86, 

6.  Establishment  of  lost  will — In  a  pro- 
ceeding to  establish  a  pencil  memorandum  of 
a  will,  later  duly  executed  but  not  found  on 
testatrix's  death,  as  a  lost  will,  the  question 
for  the  jury  is  whether  the  will  was  duly 
executed  and  whether  it  was  revoked,  so 
that  refusal  to  instruct  that  a  bequest  to  a 
trustee  beneficiary  is  void  under  Comp.  Laws 
1897,  §  92GS,  because  he  subscribed  the  will 
as  a  witness,  is  not  error.  In  re  Keene 
(Mich.)   1918E-367. 


MACHINEBT. 

Eight    of   lessee    to   remove   machinery,   see 
FiXTUBES,  4-7. 


MAJORITY. 

Protection  against  unlawful  acts  of  majori- 
ty  stockholders,    see    Coepobaxioxs,   42. 


MALICE. 

As  element  of  libel  or  slander,  see  Libel  and 
Slaxdeb,  3,  18-20,  25. 


MALPRACTICE. 

See  Physicians  a>"d  SrBGEoxs. 


2.  Enforcement  of  prospective  right. — The 
writ  of  mandamus  will  only  issue  to  compel 
performance  by  a  public  officer  of  a  duty 
which  at  that  time  he  is  boimd  to  perform, 
and  not  to  enforce  a  prospective  right.  State 
V.  District  Board  (Wis.)  1918C-584. 

Joinder  of  relators. — In  mandamus  proceed- 
ings by  parents  against  a  teacher  and  mem- 
bers of  a  board  of  education  to  compel  re- 
spondents to  admit  plaintifl"s  children  to  a 
claimed  public  school  without  payment  of  a 
fee  of  $1  a  month  for  each  pupil,  the  state 
having  an  interest  in  the  education  of  its 
children,  and  each  of  the  parents  having  a 
like  special  and  peculiar  interest  in  having 
the  regulation  exacting  the  fee  set  aside  and 
annulled,  there  is  no  tenable  objection  to  the 
joinder  of  the  parents  as  petitioners.  Hughes 
V.  Outlaw    (Ala.)   1918C-872.       (Annotated) 


MANSLAUGHTER. 

See  Homicide,  1,  2. 


MANUFACTURING  ESTABLISH- 
MENT. 

As  including  dress  making  shop,  see  Labob 
Laws,  10,  11. 


MARINE  INSURANCE. 

See  InstjbajVCE. 

1.  Constructive  total  loss. — ^Where  a  Ger- 
man port  at  the  outbreak  of  war  between 
Germany  and  England  puts  into  a  neutral 
port  and  abandons  the  voyage,  without  im- 
mediate peril  of  capttue,  there  is  not  a 
constructive  total  loss  within  a  marine  insur- 
ance policy  insuring  against  maritime  cap- 
ture. Becker  v.  London  Assur.  Corp.  (Eng.) 
1918C-367.  (Annotated^ 


MANDAMUS. 

Attacking  irregularities  in  valuation  of  prop- 
erty in  mandamus  to  enforce  order  of 
taxing  officials,  see  Taxatiox.  37. 

Compelling  admiiision  of  pupil  without  fee, 
see  Schools,  1. 

Compelling  omission  from  ballots  of  name  of 
candidate,  see  Ei.ectios,  13. 

To  compel  assessment  or  collection  of  taxes, 
see  Taxatiox,  15. 

To  compel  granting  of  letters  of  administra- 
tion, see  Executors  axd  Admixistea- 
TORS,  1,  4. 

1.  Enforcement  of  invalid  assessment. — 
Since  mandamus  is  a  discretionary  writ,  the 
court  will  not  order  its  issue  in  a  case 
wherein  it  appears  that  the  order  of  the 
state  board  of  equalization  is  invalid  as  tak- 
ing property  without  due  process  of  law  or 
for  anv  other  reason.  People  v.  Pitcher 
(Colo.)"l918D-1183 


MARKETABLE  TITLE. 

See  Vexdoe  axd  Pubchasee. 

MARRIAGE. 

1.  Nature  and  Validity: 

a.  What  Law  Governs,    154. 

b.  Common-law  Marriage,  154. 

2.  Evidence,    154. 

3.  Annulment,   154. 

See  ALiifoxT  Am>  Stnr  Money;  Divorce. 
Construction    of    marriage    settlements,    see 

Hlsbaxd  axd  Wife,  7. 
Contract  for  marriage  of  third  persons,  see 

Contracts,  2-6. 
Laws    governing    marriage    and    divorce    of 

members  of  Indian  tribes  of  Oklahoma, 

see  Indians,  2. 
Offer  of  marriage  as  defense  to  prosecution 

for  seduction,  see  Seduction,  1. 


154 


ANK  CAS.  DIGEST  (1918C-iyi8E). 


Record  of  marriage  license  as  evidence,  see 

Evidence,  21. 
Validity  of  marriage  within  prescribed  time 

of  party  to  divorce  suit,  see  Divobce,  10. 

1.  Nature  and  Validity. 

a.  What    Law    Governs. 

1.  Marriage  within  proscribed  time  after 
divorce. — A  marriage  in  tlie  state  of  New 
Mexico  by  a  person  dvorced  in  Colorado 
within  a  month  of  the  divorce  if  valid  under 
the  laws  of  New  Mexico  is  lawful  in  the 
state  of  Colorado,  though  it  would  have  been 
unlawful  if  solemnized  in  the  latter  state. 
Grouse  v.  Wheeler    (Colo.)    1918E-1074. 

(Annotated) 

2.  A  valid  marriage  in  New  Mexico  by  a 
person  divorced  in  Colorado  where  such  mar- 
riage would  be  unlawful,  does  not  render 
such  person  guilty  of  contempt  of  the  court 
panting  the  divorce  in  Colorado.  Grouse  v. 
Wheeler   (Colo.)   1918E-1074.       (Annotated) 

b.  Common-law  Marriage. 

3.  Validity. — ^A  common-law  marriage  is 
valid  in  this  state.  Palmer  v.  Cully  (Okla.) 
1918E-375. 

4.  Prior  to  the  adoption  of  the  Code  of 
1892,  a  common-law  man-iage  was  recognized 
as  lawful  and  binding  as  one  contracted  pur- 
suant to  license  and  the  usual  ceremony. 
Howard  v.  Kelly   (Miss.)    1918E-1230. 

5.  Public  asumption  of  relation. — Where 
a  man  and  woman  living  in  adultery  changed 
the  unlawful  character  of  their  cohabitation 
by  public  announcement  that  they  are  man 
and  wife  and  assumed  all  the  burdens  inci- 
dent to  matrimony,  especially  of  maintain- 
ing a  home  and  of  rearing  their  children, 
there  was  a  valid  common-law  marriage  be- 
tween them.  Howard  v.  Kelly  (Miss.) 
1918E-1230. 

2.  Evidence. 

6.  Presumption  of  validity  of  subsequent 
marriage. — Where  a  husband  contracts  a 
ceremonial  marriage  before  his  first  wife  has 
been  absent  seven  years,  the  presumption  in 
favor  of  the  validity  of  the  second  marriage 
overcomes  the  presumption  that  the  first  wife 
was  still  alive  when  it  was  contracted.  How- 
ard V.  Kelly    (Miss.)    1918E-1230. 

(Annotated) 

7.  Where  a  duly  solemnized  second  mar- 
riage is  shown,  the  presumption  arises  that 
the  first  wife  was  either  divorced  or  dead; 
the  burden  of  proof  being  upon  the  person 
claiming  rights  inconsistent  with  such  pre- 
sumption. Howard  v.  Kelly  (Miss.)  1918E- 
1230.  (Annotated.) 

8.  Presumption  in  favor  of  common-law 
marriage. — Every  presumption  will  be  in- 
dulged in  favor  of  the  legality  of  a  common- 
law  marriage  in  the  same  way  and  to  the 
same  extent  as  the  law  indulges  them  in 
favor  of  a  ceremonial  marriage,  Howard  v. 
Kelly   (Miss.)   1918E-1230. 


3.  Annulment. 

9.  Distinction  between  divorce  and  annul- 
ment.— "IXivorce"  means  the  di.^olution  of 
the  bonds  of  matrimony,  based  upon  the 
theory  of  a  valid  marriage,  for  some  cause 
arising  after  the  marriage;  an  "anHulmeot" 
proceeding  is  maintained  on  the  theory  that 
for  some  cause  existing  at  the  time  of  mar- 
riage no  valid  marriage  ever  existed,  even 
though  the  marriage  be  only  voidable  at  the 
instance  of  the  injured  party.  Millar  v. 
Millar   (Cal.)    1918E-184. 

10.  Applicability  of  divorce  statute. — In 
view  of  Civ.  Code,  §§  82-132,  relative  to 
nullity  and  dissolution  of  marriage  and 
causes  for  denvin^?  divorce,  the  word  "'di- 
vorce,*' as  used  in  Civ.  Code,  §§  128,  131,  132, 
providing  that  plaintiff  in  actions  for  divorce 
must  be  a  resident,  etc.,  does  not  include  pro- 
ceedings for  annulment  of  marriage  or  any 
action  except  the  original  action  for  divorce 
for  some  cause  arising  after  marriage.  Mil- 
lar V.  Millar  (Cal.)   1918F-184. 

11.  Secret  intention  to  refuse  marital  in- 
tercourse.— The  secret  determination  of  one 
of  the  parties  to  a  marriage,  when  entering 
into  the  relation,  absolutely  to  refuse  to  the 
other  sexual  intercourse,  a  course  consistent- 
ly persisted  in  at  all  times  after  the  mar- 
riage, the  other  party  having  acted  in  good 
faith,  is  a  "fraud"  within  Civ.  Code,  §  82, 
subd.  4,  specifying  as  a  ground  for  annul- 
ment of  marriage  that  the  consent  of  either 
party  was  obtained  by  fraud,  etc,  since  a 
promise  made  without  any  intent  to  perform 
constitutes  actual  fraiid.  Millar  v.  Millar 
(Cal.)    1918E-184.  (Annotated) 

12.  In  a  wife'%  suit  for  maintenance,  the 
husband's  cross-complaint  for  annulment  on 
the  ground,  that  the  wife  had  entered  the 
marriage  relation  with  the  intention  of  re- 
fusing him  sexual  intercourse  alleged  that, 
owing  to  the  wife's  persistent  refusal,  the 
parties  had  never  had  marital  intercourse 
after  the  marriage,  and  that  within  a  rea- 
sonable time  the  husband  notified  the  wife 
that  their  relations  were  terminated,  etc.. 
while,  according  to  the  allegations  of  the 
wife's  complaint,  the  husband  forthwith  wil- 
fully failed  to  provide  the  wife  with  the 
common  necessaries  of  life  or  any  money. 
It  is  held  that  the  cross-complaint  sufficient- 
ly negatived  the  exception  of  Civil  Code,  § 
82,  subd.  4,  providing  that  a  marriage  may 
be  annulled,  when  the  consent  of  either  party 
was  obtained  by  fraud,  "unless  such  party 
afterwards  with  full  knowledge  of  the  facts 
constituting  the  fraud  freely  cohabited  with 
the  other  as  husband  and  wife."  Millar  v. 
Millar   (Cal.)    1918E-184. 

13.  Condonation  as  defense. — "Condona- 
tion," the  conditional  forgiveness  of  a  matri- 
monial offense  constituting  a  cause  for  di- 
vorce, is  a  defense  only  in  the  ordinary 
divorce  action  for  some  cause  arising  after 
marriage,  and  the  statutory  provisions  as  to 
such  defense  have  no  part  in  a  proceeding 
for  annulment  of  marriage  for  fraud  consist- 
ing in  a  wife's  determination  to  deny  sexual 
intercourse.  Millar  v.  Millar  (Cal.)  1918E- 
184. 


MASOXS— MASTER  AXD  SERVAXT. 


14.  Waiver    of    ground    for    annulment.T- 

Under  Civ.  Code,  §  32,  siibd.  4,  making  it 
ground  for  annulment  of  marriage  if  the  con- 
sent of  either  party  was  obtained  by  fraijd, 
unless  such  party  afterwards,  with  full 
knowledge  of  the  facts  constituting  the 
fraud,  freely  cohabited  with  the  other  as 
husband  and  wife,  if  a  wife  entered  the  mar- 
riage relation  intending  to  refuse  her  hus* 
l>and  sexual  intercourse,  thus  committing  a 
fraud  upon  hira,  and  he,  with  full  knowledge 
of  the  facts,  assumed  the  rights  of  marriage, 
cohabiting  with  his  wife  as  such,  thus  form- 
ing the  relation  notwithstanding  the  fraud, 
he  waived  it,  and  can  maintain  no  action  for 
annulment  on  account  of  it.  Miller  v.  ;Mil- 
lar    (Cal.)    1918E-184. 

15.  Effect  sf  decree  of  annulment. — The 
decree  of  nullity  in  a  proceeding  to  annul  a 
marriage  determines  that  no  valid  marriasre 
ever  existed.  Millar  v.  Millar  (Cal.)  1918E- 
184. 


MASONS. 

Exemption  of  Masonic  Lodge  from  taxation, 
see  Taxation,  27. 


MASTER  AND  SERVANT. 

1.  Contract  of  Employment,  155. 

2.  Liability  of  Master  for  Injury  to  Servant: 

a.  Duty  to  Furnish  Safe  Appliances  and 

Machinery,   155. 

b.  Workmen's   Compensation   Act: 

(1)  Operation    without    State,    156. 

(2)  Exclusiveness  of  Remedy,  156. 

(3)  "Accident"    and    "Personal    In- 

jury," 156. 

(4)  Injuries  Arising  "Out  of  and  in 

Course  of"  Employment,  156. 

(5)  Notice  to  Employer,  157. 

(6)  Compensation,    157. 

(7)  Review,    158. 

c.  Employer's  Relief  Department,  158. 

d.  Actions   for  Injuries,    159. 

See  Agexcy;  Ixdepexdext  Contkactoks;  La- 
bor COMBIXATIOXS  ;   LABOR  LAWS. 

Damages  for  death  of  parent  in  action  imder 
Federal  Employers'  Liability  Act.  see 
Death  by  Wrongful  Act,  20,  21. 

Employer's  liability  insurance,  see  Insur- 
ance, 30-38. 

Joint  or  several  liability  of  master  and  serv- 
ant for  publishing  libel,  see  Libel  and 
Slander,  32.  33.  • 

Liability  of  owner  of  automobile  for  negli- 
gence of  chauffeur,  see  Autojiobiles,  5- 
11. 

Liability  of  workman  repairing  walk  for  in- 
juries to  tenant's  wife  caused  by  negli- 
gence, see  Landlord  and  Tenant,  9.  10. 

Lien  of  attorney  in  action  brought  imder 
Federal  Employer's  Liability  Act,  see 
Attorneys,  17  , 


Persons  entitled  to  benefit  of  recovery  in  ac- 
tion for  death  under  Federal  Employers' 
Liabilitv  Act,  see  Death  bt  Wkoxgful 
Act,  4,  "15,  18. 

Preferred  claim  for  wages  in  bankruptcy 
proceedings,  see  Bankruptcy,  6. 

Recovery  by  parent  for  loss  of  services  re- 
sulting from  injuries  received  by  minor 
son  for  failure  of  employer  to  comply 
with  statutory  regulations,  see  Parent 
AND  Child,  2. 

Unavoidable  accident  causing  delay  as  ex- 
cusing violation  of  federal  hours  of 
service  act,  see  Labor  Laws,  1. 

1.  Contract   of  Employment. 

1.  Time  as  essence  of  contract. — Ordinarily 
time  is  not  of  the  essence  of  a  contract  to 
enter  into  the  employment  of  another,  un- 
less made  so  by  its  terms,  or  unless  it  is 
an  element  of  a  mere  condition  precedent. 
Lewis  V.  West  Virginia  Pulp,  etc.  Co.  (W. 
Va.)     1918D-754.  (Annotated) 

2.  Injunction  against  solicitation  by  form- 
er employee. — One  gelling  a  laundry  route 
and  being  employed  by  the  purchaser  to  so- 
licit on  such  route  retains  the  right,  on  leav- 
ing such  employ,  to  work  for  a  rival  laundry 
if  he  chooses,  or,  having  established  a  laun- 
dry business  himself,  to  serve  all  persons 
voluntarily  offering  him  their  trade;  but  in 
such  competition  he  must  act  with  the  ut- 
most fairness,  resolving  every  doubt  rather 
in  favor  of  the  interests  of  his  former  em- 
ployer than  against  them.  New  Method 
Laundry  Co.  v.  MacCann  (Cal.)   1918C-1022. 

(Annotated) 

3.  In  an  injunction  against  a  driver  who 
had  sold  a  laundry  route  to  plaintiff  and 
worked  for  plaintiff  thereon,  restraining  the 
driver  from  "soliciting  laundry  work  from" 
plaintiff's  customers  along  the  route,  it  is 
proper  to  insert  the  words  "but  not  from 
receiving"  before  the  words  "laundry  work," 
etc..  so  as  not  to  prevent  him  from  receiv- 
ing such  work  unsolicited.  New  Method 
Laudry  Co.  v.   MacCann    (Cal.)    19180-1022. 

(Annotated) 

2.  Liability  of  Master  for  Injury  to  Servant. 

a.  Duty    to    Furnish    Safe    Appliances    and 
Machinery. 

4.  Federal  boiler  inspection  act. — The  Fed- 
eral Empiovers'  Liability  Act  (Act  April  22, 

1908,  c.  149,  §  4,  35  Stat.  66   [Fed.  St.  Ann. 

1909,  Supp.  p.  584])  provides  that  in  actions 
thereunder  employees  shall  not  be  held  to 
have  assumed  the  risk,  where  the  viola- 
tion by  the  carrier  of  any  statute  enacted 
for  the  safety  of  employees  contributed  to 
the  injurv  or  death.  The  Federal  Boiler  In- 
spection Act  (Act  Feb.  17,  1911,  c.  103,  §  2, 
36  Stat.  91  [Fed.  St.  Ann.  1912,  Supp.  p. 
339])  provides  that  it  shall  be  unlawful  for 
interstate  carriers  to  use  any  locomotive 
engine  propelled  by  steam  power,  unless  the 
boiler  and  the  appurtenances  thereto  are  in 
proper  condition  and  safe  to  operate  witliout 
unnecessary  peril  to  life  or  limb,  and  that 


156 


ANX.  CAS.  DIGEST  (1918C-1918E). 


all  boilers  shall  be  inspected  from  time  to 
time,  and  be  able  to  withstand  such  testa 
as  maj-  be  prescribed  thereunder.  It  is 
held  that  this  last-mentioned  act  is  a  "stat- 
ute enacted  for  the  safety  of  employees," 
within  the  employer's  liability  act.  Great 
Northern  R.  Co.  v.  Donaldson  (U.  S.)  1918C- 
581.  (Annotated) 

5.  Boiler  Inspection  Act,  §  2,  requiring  lo- 
comotive boilers  to  be  safe  for  use  witliout 
unnecessary  peril  to  life  or  limb,  and  re- 
quiring tJiem  to  be  inspected  from  time  to 
time,  does  not  prevent  liability  for  injury 
or  deatli  caused  by  some  particular  feature 
of  construction  which  is  in  fact  unsafe, 
though  it  has  not  been  disapproved  by  the 
federal  boiler  inspector.  Great  Xorthern  R^ 
Co.  V.  Donaldson  (U.  S.)  1918C-  581. 

(Annotated) 

b.  Workmen's  Compensation  Acts. 

(1)  Operation  without  State. 

6.  Workmen's  Compensation  Act  (Coneol. 
Laws,  c.  67)  does  not  apply  to  an  employer 
who  moved  his  plant  from  the  state  before 
the  passage  of  such  act,  retaining  only  a 
sales  agency  in  the  state,  although  the  em- 
ployee who  was  injured  in  another  state 
contracted  with  such  employer  while  the 
plant  was  in  New  York.  Smith  v.  Heine 
Safety  Boiler  Co.    (N.  Y.)    1918D-316. 

(Annotated) 

(2)   Exclusiveness   of   Remedy. 

7.  Violation  by  employer  of  "lawful  re- 
quirements."— The  Industrial  Commission 
Act  (103  0.  L.  95)  provides  for  the  creation 
of  an  administrative  board  with  power  to 
supervise  all  places  of  employment,  to 
prescribe  general  rules  and  requirements  con- 
cerning all  employments  and  places  of  em- 
ployment and  particular  orders  and  require- 
ments for  particular  employers  and  places 
of  employment,  to  secure  the  lives,  health, 
safety  and  Avelfare  of  every  employee  in 
such  employments,  and  every  frequenter  of 
such  places  of  employment.  The  purpose  and 
intent  of  sections  15  and  16  of  the  act  was 
to  bring  all  employers  within  the  scope 
of  the  jurisdiction  and  authority  of  the  com- 
mission and  to  impose  on  them  the  obliga- 
tion to  comply  with  the  orders  and  require- 
ments of  the  commission  when  duly  made. 
The  provisions  of  sections  15  and  16  are 
not  the  lawful  requirements  referred  to  by, 
and  within  the  meaning  of,  section  35,  arti- 
cle II,  of  the  constitution.  American  Wood- 
en ware  Mfg.  Co.  V.  Schorling  (Ohio)  1918D- 
318.  (Annotated) 

8.  The  term  "lawful  requirement,"  as  used 
in  section  35,  article  IT,  of  the  constitution, 
and  section  29  of  the  Workmen's  Compen- 
sation Act  (103  0.  L.  84),  does  not  include 
a  general  cotirse  of  conduct,  or  those  general 
duties  and  obligations  of  care  and  caution 
which  rest  upon  employers  and  employees, 
and  all  other  members  of  the  community,  for 
the  protection  of  life,  health,  and  safety, 
American  Woodenware  Mfg.  Co.  v.  Schorlmg 
(Ohio.)  1918D-318.  '"^ 


♦  9.  By  the  provisions  of  section  25  of  the 
Industrial  Commission  Act  to  employers  gen- 
erally, or  to  a  particular  employer,  with 
reference  to  safe  employment  or  place  of 
employment,  is  a  lawful  requirement  (until 
altered  in  the  manner  provided  for  in  the 
act),  for  failure  to  comply  with  which,  or 
with  any  statute  or  municipal  ordinance  pre- 
scribing means  or  methods  required  to  be 
used  to  protect  the  lives,  health,  safety  and 
welfare  of  emploj'ees,  the  employer  under 
the  proviso  contained  in  section  35  article  II, 
of  the  constitution,  and  section  20  of  the 
Workmen's  Compensation  Act,  is  liable  to 
an  employee  injured  by  reason  of  such  fail- 
ure. American  'SA'oodenware  Mfg.  Co.  v» 
Schorling    (Ohio)    1918D-318.        (Annotated) 

(3)   "Accident"   and   "Personal   Injury." 

10.  "Loss"  of  foot,— Under  Workmen's 
Compensation  Law  (McKinney's  Consol. 
Laws,  Book  64.  §  15,  subd.  3).  providing  for 
compensation  in  case  of  disability,  partial 
in  character,  but  permanent  in  quality,  and 
that  the  permanent  loss  of  the  use  of  a 
foot  shall  be  considered  as  the  equivalent 
to  the  loss  of  such  foot,  the  fact  that  claim- 
ant has  sustained  a  compound  fracture  of 
the  leg  between  the  ankle  and  the  knee  does 
not  create  a  presumption  that  he  has  lost 
the  use  of  his  foot;  section  21  of  the  act  re- 
lating to  presumptions  not  applying,  and 
the  burden  of  establishing  the  loss  being  on 
claimant.  Modra  v.  Little  (N.  Y.)  1018D- 
177.  (Annotated) 

11.  Permanent  disability. — In  a  proceeding 
for  injury,  under  the  workmen's  compensa- 
tion act,  for  the  permanent  loss  of  the  use 
of  a  foot,  an  award  of  compensation  as 
for  permanent  disability  is  held  to  be  er- 
roneous under  the  evidence,  where  the  leg 
was  fractured  merelv.  ^lodjra  v.  Little  (N. 
Y.)   1918D-177. 

12.  Lightning  stroke. — Where  an  employee 
')f  a  county  Mhile  ongagod  in  work  upon  the 
public  roads  is  killed  by  lightning,  death  re- 
sults from  an  "industrial  accident,"  within 
Workmen's  Compensation  Act  (Laws  1915, 
c.  96)  §  16.  providing  that  the  industrial 
accident  fund  is  liable  for  the  payment  of 
compensation  to  an  employee,  or,  in  case 
of  his  death,  to  his  dependents  for  injmry 
arising  out  of  and  in  the  course  of  his  em- 
ployment. Wiggins  v.  Industrial  Ace.  Board 
(Mont.)    1918E-1164. 

(4)  Injuries  Arising  "Out  of  and  in  Course 
of    Emplojonent. 

13.  Under  Workmen's  Compensation  Act 
(Laws  1913,  p.  335),  making  certain  employ- 
ers liable  for  all  accidental  injuries  sus- 
tained "arising  out  of  and  in  the  course 
of  employment,"  it  is  not  sufficient  that  the 
accident  occur  in  the  course  of  the  employ- 
ment, but  the  causative  danger  must  also 
arise  out  of  it;  for  the  words  "arising  out 
of"  refer  to  the  origin  or  cause  of  the  acci- 
dent, and  are  descriptive  of  its  character, 
while  the  words  "in  the  course  of  refer 
to  the  time,  place,  and  circumstances  under 
which  the  accident  takes  place,  and  by  the 


MASTER  AND  SERVANT. 


157 


use  of  these  words  it  was  not  the  intention 
of  the  legislature  to  make  the  employer  an 
insurer  against  all  accidental  injuries  which 
might  happen  to  an  employee  while  in  the 
course  ot  the  employment,  but  only  for 
such  injuries  arising  from  or  growing  out 
of  the  risks  peculiar  to  the  nature  of  the 
work  in  the  scope  of  the  workman's  em- 
ployment or  incidental  to  such  employment, 
and  accidents  in  which  it  is  possible  to  trace 
the  injury  to  some  risk  or  hazard  to  which 
the  employee  is  exposed  in  a  special  degree 
by  reason  of  such  employment;  risks  to 
which  all  persons  similarly  situated  are 
equally  exposed  and  not  traceable  in  some 
special  degree  to  the  particular  employment 
being  excluded.  Mueller  Constr.  Co.  v.  In- 
dustrial   Board    (111.)    1918E-810. 

(Annotated) 

14.  Time  of  accident. — ^Where  a  construc- 
tion company's  foreman,  reporting  at  the 
building  being  remodeled  a  half  hour  before 
the  hour  when  the  "time"  of  himself  and  men 
began  to  nui,  proceeds  thence  to  another 
building  to  telephone  for  lumber,  when  he 
is  struck  by  automobile,'  the  accident  hap- 
pens in  the  course  of  employment:  order- 
ing materials  being  an  incidental  duty,  in 
discharging  which  the  use  of  telephone  in 
nearby  building  was  as  much  in  the  course 
of  his  employment  as  if  one  had  been  in- 
stalled in  the  building  under  construction 
and  he  was  using  it,  and  a  reasonable  time 
before  as  well  as  after  the  actual  time  for 
which  the  employee  is  paid  being  allowable 
as  included  within  the  period  of  employment. 
Mueller  Constr.  Co.  v.  Industrial  Board  (111.) 
1918E-810.  (Anotated) 

15.  In  such  case,  his  employer  having  ac- 
quiesced in  the  foreman's  practice  of  going 
to  public  telephones  to  telephone  for  ma- 
terials by  repaying  him  amounts  expended 
for  telephone  tolls,  the  foreman's  injury 
arises  out  of  his  employment,  since  he  was 
injured  in  performing  a  regular  duty  ex- 
pected of  him.  ilueller  Con.str.  Co.  v.  In- 
dustrial Board   (111.)    1918E-710. 

f  Annotated) 

16.  Lighting  Stroke. — An  employee  of  a 
county  required  to  work  on  a  steel  grader 
while  a  thunderstorm  is  threatening  is  not 
exposed  to  more  than  the  normal  risk  which 
the  people  of  the  community  generally  are 
subject  to,  and  there  can  be  no  recovery  for 
his  death  from  lightning  under  Workmen's 
Compensation  Act  (Laws  1915,  c.  96)  §  16, 
imposing  liability  for  death  from  "an  injury 
arising  out  of  and  in  the  course  of  his  em- 
ployment;" the  words  "out  of"  pointing  to 
the  origin  of  tiie  accident,  and  being  descrip- 
tive of  the  relation  which  the  injury  bears 
to  the  emplovmept.  Wiggins  v.  Industrial 
Ace.  Board   (Mont.)   1918E-1164. 

(Annotated) 

17.  Fall  from  dock  while  returning  to  ship, 
— A  maritime  employee  falling  from  a  dock 
while  returning  to  his  ship  after  an  absence 
on  shore  for  purposes  of  his  own  does  not 
sustain  an  accident  arising  out  of  and  in  the 
course  of  his  employment  within  the  work- 
men's compensation  act,  though  both  the 
dock    and   the    ship   were    under   control   of 


the  admiralty  and  the  employee  gained  en- 
trance to  the  dock  by  virtue  of  an  admiralty 
pass.  Davidson  v.  *M'Robb  (Eng.)  1918D- 
670.  (Annotated) 

(5)  Notice  to  Employer. 

18.  Failure  of  an  injured  employee  to 
give  the  notice  of  injury  required  by  the 
Workmen's  Compensation  Law  is  not  ren- 
dered harmless  to  the  employer  by  the  fact 
that  there  was  no  witness  to  the  accident, 
nor  by  the  fact  that  the  injury  was  given 
proper  medical  treatment.  Hynes  v.  Pullman 
Co.    (X.  Y.)    1918C-1040. 

(6)  Compensation. 

19.  Person  working  during  spare  time. — 
Where  the  injured  employee  began  work 
during  the  summer,  and  returned  to  school 
in  the  fall,  and  each  day  at  the  end  of  the 
school  session  worked  as  a  spare  weaver,  or 
spare-time  worker,  for  approximately  three 
hours,  also  working  on  Saturdays,  there  is 
no  basis  for  the  industrial  accident  board  to 
ascertain  her  "average  weekly  wages,"  as 
defined  in  Workmen's  Compensation  Act  (St. 
1911,  c.  751)  pt.  5,  §  2.  Rice's  Case  (Mass.) 
1918E-1052.  (Annotated) 

20.  On  such  facts,  the  finding  of  the  in- 
dustrial accident  board  that  all  time,  ex- 
cept such  working  hours,  was  "lost  time," 
within  the  meaning  of  the  compensation  act, 
cannot  be  sustained.  Rice's  Case  (Mass.) 
1918E-1052.  (Annotated) 

21.  In  the  absence  of  evidence  to  show 
what  average  weekly  amount  during  the 
twelve  months  previous  to  the  employee's 
injury  was  being  earned  by  a  person  in  the 
same  grade,  employed  at  the  same  work,  by 
the  same  employer,  and  of  the  average  week- 
ly wages  earned  by  a  i)erson  in  the  same 
grade,  employed  in  the  same  cla«s  of  em- 
ployment, and  in  the  same  district,  the  aver- 
age weekly  wages  of  the  employee  cannot  be- 
ascertained  by  the  industrial  board,  under 
Workmen's  Compensation  Act,  pt.  5,  §  2, 
providing  that,  where  it  is  impracticable  to 
compute  the  average  weekly  wages  as  above 
defined,  regard  may  be  had  to  the  average 
weekly  amount  which  during  the  twelve 
months  previous  to  the  injury  was  being 
earned  by  a  person  in  the  same  grade  em- 
ployed at  the  same  work  bv  the  same  em- 
ployer, etc.    Rice's  Case  (Mass.)  1918E-1052. 

(Annotated) 

22.  The  amount  of  compensation  to  be 
awarded  an  injured  employee  under  Work- 
men's Compensation  Act,  pt.  5,  §  2,  is  to  be 
determined,  not  by  what  the  employee  is 
capable  of  earning,  but  by  what  was  act- 
ually earned.  Rice's  Case  (Mass.)  1918E- 
1052.  (Annotated) 

23.  Compensation  to  be  awarded  an  in- 
jiu-ed  employee,  under  the  workmen's  com- 
pensation act.  in  such  a  case  cannot  be  de- 
termined upon  the  average  weekly  wages  of 
a  weaver,  in  the  absence  of  evidence  to  show 
the  employee  was  a  weaver;  it  appearing,  on 
the  contrary,  that  she  was  a  spare  weaver, 
or  spare-time  worker,  and  there  being  noth- 
ing to  indicate  the  average  weekly  wages  of 


158 


AN:N.  CAS.  DIGEST  (1918C-1918E). 


such  a  person.  Rice's  Case  (Mass.)  1918E- 
1052.  (Annotated) 

24.  If  there  is  no  such  kind  of  employment 
recognized  in  textile  manufacturing  as  that 
of  spare  weaver,  or  spare-time  worker  (which 
the  injured  employee  was),  the  "average 
vreeklj'  wages"  actually  earned  by  one  work- 
ing as  a  spare  weaver  during  the  time  she 
was  actually  employed  is  the  basis  of  com- 
pensation, under  workmen's  compensation 
act  J  "average  weekly  wages,"  in  such  case, 
not  being  confined  to  the  definition  in  part 
6,  §  2.     Rice's  Case   (Mass.)   1918E-1052. 

(Annotated) 

25.  Where  the  definition  of  average  week- 
ly wages  in  Workmen's  Compensation  Act, 
pt.  5,  §  2,  is  not  applicable  to  the  case  of 
a  particular  employee,  the  Avords  "average 
weekly  wages,"  in  part  2,  §§  9,  10,  as  to 
payment,  should  be  interpreted  in  their  com- 
mon and  ordinary  sense,  and  be  computed 
fee  dividing  the  total  amount  earned  by  the 
number  of  weeks  of  employment.  Rice's 
Case  (Mass.)  1918E-1052.  (Annotated) 

(7)  Review. 

26.  Finding  ef  industrial  board. — ^Where 
there  is  evidence  to  support  the  finding  of 
the  industrial  board,  even  though  that  evi- 
dence is  controverted,  the  courts  cannot  pass 
upon  its  weight  or  suflBciency.  Mueller 
Constr.  Co.  v.  Industrial  Board  (111.)  1918E- 
810. 

c.  Employer's  Relief  Department. 

27.  Provision  for  forfeiture  in  case  of  suit. 

— Where  a  relief  society's  membership  is 
confined  to  a  certain  railways  employees, 
and  the  railway  contributes  semiannually  a 
sum  equal  to  the  total  assessments  paid  by 
members,  a  by-law  tkat  half  the  sum  insured 
for  should  be  forfeited  if  the  employee  or 
his  representative  sued  the  railway  for  dam- 
ages is  not  void  under  Federal  Employers' 
Liability  Act,  April  22,  1908,  c.  149,  §  5, 
35  Stat.  66  (8  Fed.  St.  Ann.  [2d  ed.]  1264), 
providing  "any  contract,  rule,  regulation,  or 
device  whatsoever,  the  purpose  and  intent  of 
which  shall  be  to  enable  any  common  car- 
rier to  exempt  itself  from  any  liability  creat- 
ed by  this  act,  shall  to  that  extent  be  void," 
since  this  provision  does  not  attempt  to  reg- 
ulate contracts  between  an  employee  and 
an  insurance  company,  and  even  if  the  con- 
tract be  considered  one  with  the  railway 
company  through  the  society  as  its  agent, 
the  contract  is  no  more  than  an  agreement 
by  the  railway  to  pay  an  additional  amount 
contributed  by  itself  if  suit  is  not  brought. 
Wilson  v.  Grand  Trunk  Ry.  Ins.  etc.  Soc.  (N. 
H.)    1918E-1191.  (Annotated) 

28.  Resort  to  outside  physician. — Where 
a  lumber  company  posts  notice  that  it 
charges  employees  with  a  hospital  fee  of 
75  cents  a  month  after  the  first  three  days' 
employment,  etc.,  and  an  employee  pays  the 
specified  fees,  there  is  a  complete  contract, 
requiring  the  company  to  furnish  the  serv- 
ices of  its  physician  to  the  employee  under 
the  circumstances  specified  in  the  notices;  it 
is  the  duty  of  the  employee  to  apply  for  such 


services  before  employing  another  physiciaa, 
and  his  duty  to  use  reasonable  diligence  to 
find  the  company's  physician  asd  request  his 
services  before  employing  another,  and  if 
he  fails  to  use  such  diligence  he  cannot  hold 
the  company  liable  for  sum.s  paid  another 
physician.  Crites  v.  Willamette  Lumber  Co. 
(Ore.)     1918D-1050.  (Annotated.) 

29.  Whether  or  not  the  employee  used  such 
diligence  is  a  question  of  fact  for  the  ju*-y 
to  determine.  Crites  v.  Willamette  Valley 
Lumber  Co.    (Ore.)    1918D-1050. 

(Annotated) 

30.  If  an  employee  requiring  the  services 
of  the  employer's  physician,  the  employer 
having  contracted  to  furnish  medical  serv- 
ices, is  ignorant  as  to  who  the  physician  is, 
it  is  his  duty  to  inquire  and  ascertain  from 
the  employer,  or,  when  the  name  and  place 
of  business  or  residence  of  the  physician  is 
known,  the  employee  should  apply  where  it 
is  reasonable  to  suppose  the  doctor  may  be 
found,  elites  v.  Willamette  Valley  Lumber 
Co.    (Ore.)    1918D-1050.  (Annotated) 

31.  Diligence  in  securing  company  physi- 
cia». — Where  an  employer,  which  contracts 
for  consideration  to  furnish  medical  atten- 
tion to  its  servants,  holds  out  to  them  a 
particular  person  as  its  physician,  and  an 
employee  uses  reasonable  diligence  to  se- 
ciure  his  services  in  an  illness,  finds  him 
absent,  and,  after  waiting  a  reasonable  time 
for  his  return,  employs  and  pays  another 
physician,  the  employer  must  reimburse  him 
for  the  payment  thus  made  to  the  other  phy- 
sician. Crites  v.  Willamette  Valley  Lumber 
Co.    (Ore.)    1918I>-1050.  (Annotated) 

32.  Where  the  wife  of  the  employee  of  a 
lumber  company  which  has  contracted  to 
furnish  him  medical  services,  when  he  is 
attacked  by  appendicitis,  goes  at  8  in  the 
morning  to  the  residence  of  the  company's 
physician  and  learns  he  is  out  of  town,  at 
1:30  in  the  afternoon  goes  to  a  neighbor's 
house  and  telephones  the  doctor's  residence, 
but  is  again  informed  that  he  is  absent,  and, 
being  a  trained  nurse  and  becoming  alarmed 
at  her  husband's  condition,  then  calls  in  an- 
other doctor,  who  operates,  there  is  no  lack 
of  diligence  on  the  part  of  the  employee  «r 
his  wife,  in  attempting  to  secure  the  attend- 
ance of  the  employer's  physician,  such  as  will 
preclude  recov«ry  from  the  employer  of  the 
fees  paid  the  other  doctor.  Crites  v.  Wil- 
lamette Valley  Lumber  Co.  (Ore.)  1918-1050, 

(Annotated) 

33.  Evidence  as  to  diligence. — In  a  serv- 
ant's action  against  his  emploj-er,  who  had 
contracted  to  furnish  medical  attendance  in 
case  of  illness,  for  fees  paid  a  physician  other 
than  the  employer's,  the  latter  having  been 
absent  when  the  servant  was  attacked  by 
appendicitis,  testimony  of  another  employee 
that  on  several  occasions  when  injured  he 
had  gone  to  the  office  of  the  employer's  phy- 
sician and  found  him  absent,  and  was  not 
directed  to  apply  to  any  other  physician,  is 
properly  admitted  to  show  that  the  custom 
of  the  doctor,  to  which  he  testified,  of  keep- 
ing an  attendant  at  his  office,  who,  in  his 
absence,  made  arrangements  for  the  proper 
treatment   of   his   patients,  had   not   always 


MEASUKES— MECHANICS'  LIENS. 


159 


teeH  observed.     Crites  v.  Willamette  Valley 
LuMber  Co.   (Ore.)   1918D-1050. 

34.  In  such  action,  the  admission  of  testi- 
mony of  the  servant's  "wife  as  to  what  oc- 
curred between  her  and  the  doctor's  wife 
when  the  servant's  wife  inquired  for  the  doc- 
tor at  the  family  residence,  if  erroneous,  is 
harmless.  Grites  v.  Willamette  Valley  Lum- 
ber Co.  (Ore.)  1918D-1050. 

d.  Actions  for  Injuries. 

35,  Instructions. — In  an  action  under  the 
federal  employers'  liability  act  for  the  death 
of  an  employee  resulting  from  a  boiler  ex- 
plosion, the  court  charged  that  the  law  made 
it  unlawful  for  a  carrier,  such  as  defendant, 
to  use  any  locomotive  engine  propelled  by 
steam  power,  unless  in  proper  condition  and 
safe  to  operate  in  the  service  to  which  it 
was  put,  without  unnecessary  peril,  and  pro- 
vided that  no  employee  should  be  deemed  to 
have  assumed  the  risk,  or  to  have  been  guilty 
of  contributory  negligence,  by  reason  of  any 
engine  operated  in  violation  of  such  law; 
that  if  the  jury  believed  that  the  boiler  in 
question  was  not  in  proper  condition  and  safe 
to  operate  in  the  active  service  of  defendant 
in  moving  traffic,  without  unnecessary  peril, 
by  reason  of  defendant's  negligence  in  any 
of  the  respects  alleged,  then  the  employee  did 
not  assume  the  risk,  and  was  not  guilty  of 
contributory  negligence;  but  that  if  such 
boiler  and  appurtenances  were  in  proper  con- 
dition and  safe  for  such  use,  but  due  to  de- 
fendant's negligence  were  defective  in  some 
•f  the  respects  alleged,  and  the  employee  had 
actual  knowledge  of  such  defects,  or  they 
were  so  plainly  observable  that  in  the  rea- 
sonable exercise  of  his  faculties  he  should 
have  known  of  them,  and  might  be  presumed 
to  have  known  thereof  and  the  danger  sur- 
rounding him,  then  he  assumed  the  risks  and 
could  not  recover.  It  is  held  that  this  instruc- 
tion was  more  favorable  to  defendant  than 
the  law  required.  Great  Northern  E..  Co.  v. 
Donaldson  (U.  S.)  1918C-581. 

36.  Questions  for  jury. — In  an  action 
against  a  railroad  for  its  fireman's  death, 
whether  the  road  was  negligent  in  maintain- 
ing its  track  at  the  curve  where  a  derailment 
took  place  beacuse  of  defective  ties  is  held 
to  be  for  the  jurv  under  the  evidence.  Davis 
V.  Cincinnati,  etc.  R.  Co.   (Ky.)   1918E-414. 

37.  In  an  action  against  a  railroad  for  its 
fireman's  death  when  the  engine  of  a  train 
running  seventy-five  to  eighty  miles  an  hour 
was  derailed,  questions  whether  the  road  was 
running  its  train  at  a  negligent  rate  of  speed, 
indicating  great  recklessness  and  an  utter  dis- 
regard for  the  safety  of  others,  especially 
those  on  the  train,  and  whether  such  speed 
contributed  to  produce  the  accident,  is  held  to 
be  for  the  jurv.  Davis  v.  Cincinnati,  etc.  R. 
Co.    (Ky.)    i9i8E-414. 

38.  SuflSciency  of  evidence. — In  an  action 
under  the  federal  employers'  liability  act,  the 
evidence  is  held  insuflScient  to  show  an  ap- 
proval by  government  inspectors  of  the  use 
of  the  large  type  of  button  head  on  the 
crown  bolts  of  the  boiler  of  oil-burning  en- 


gines.    Great  Northern  E.  Co.  v.  Donaldson 
(U.  S.)  1918C-581.  (Annotated.) 


MEASURES. 

See  Weights  and  Measukes. 

MEAT    DEALERS. 

Licensing;  gee  Licensbs,  4-6. 

MECHANICS'  UEirS. 

1.  Contract  under  Which  Lien  Acquired,  159. 

2.  Lienable  Claims,  160. 

3.  Notice  or  Statement  of  Claim,  160. 

4.  Priority,  160. 

Right  of  action  of  farm  laborer  for  lien, 
destroyed  by  confusion  of  goods,  see 
CoNFtrsiox  OP  Goods,  1. 

1.  Contract  under  Which  Lien  Acquired. 

1.  Construction  of  contract  for  retention  of 
funds. — Under  a  contract  with  a  municipality 
for  the  removal  of  ashes  and  refuse,  where 
there  is  a  right  to  file  a  lien  for  labor  and 
materials  furnished,  a  provision  in  the  con- 
tract for  the  retention  by  the  city  of  suffi- 
cient moneys  with  which  to  pay  claims  on 
which  liens  had  been  filed  is  for  the  benefit 
of  the  contractor  only,  and  not  for  the  pi*o- 
tection  of  laborers  or  materialmen.  River- 
side Contracting  Co.  v.  New  York  (N.  Y.) 
1918C-1075. 

2.  Failure  of  contract  to  fix  time  of  pay- 
ment.— A  building  contract,  merely  providing 
when  seventy-five  per  cent  of  the  contract 
price  is  payable,  does  not  conform  substan- 
tially to  Code  Civ.  Proc.  §  1184,  providing  in 
efi'ect  that  such  contracts  must,  by  their 
terms,  declare  that  at  least  twenty-five  per 
cent  of  the  contract  price  shall  be  payable 
at  least  thirty-five  days  after  final  comple- 
tion :  and  so  others  than  the  contractor  fur- 
nishing labor  and  material  are  entitled  to 
lien  for  the  full  amount  thereof.  Sweet  v. 
Fresno  Hotel  Co.   (Cal.)   1918D-346. 

3.  Claim  against  fund — Necessity  that 
work  be  public  improvement. — Under  Lien 
Law.  §  5  (McKinney's  Consol.  Laws.  Book 
32.  p.  37),  providing  that  a  plaintiff's  only 
claim  to  a  fund  must  be  that  the  principal 
contract  towards  the  completion  of  which 
materials  and  labor  were  furnished  was  one 
for  a  public  improvement,  although  material 
furnished  and  services  performed  in  con- 
structing docks  would  be  a  public  improve- 
ment if  supplied  under  a  contract  with  the 
city  for  that  purpose,  it  is  not  Avhen  sup- 
plied and  performed  imder  a  contract  for  the 
removal  of  ashes  and  refuse.  Riverside  Con- 
tracting Co.  V.  New  York  (N.  Y.)  1918C- 
1075. 

4.  Under  the  Lien  Law  (Consol.  Laws,  C; 
33)  §  2  (McKinney's  Consol.  Laws,  Book  32, 
p.  10),  defining  a  "public  improvement"  as  an 
improvement  upon  any  real  property  belong- 


160 


ANK  CAS.  DIGEST  (11)18C-1918E). 


ing  to  a  municipal  corporation,  and  an  "ira- 
I)rovement"  as  "the  erection,  alteration  or  re- 
pair of  any  structure  connected  witii  or 
beneath  the  surface,  any  real  property  and 
any  work  done  upon  such  propertj%  or  mate- 
rials furnished  for  its  permanent  improve- 
ment," a  contract  by  a  construction  company 
with  the  city  of  New  York  for  the  removal  of 
ashes  and  refuse,  although  the  ashes  were 
dumped  and  used  to  fill  in  and  remake  land, 
is  not  a  contract  for  a  public  improvement, 
since  the  character  of  a  contract,  under  the 
Lien  Law,  must  be  established  by  its  sub- 
stanital  purpose,  and  not  by  some  merely 
incidental  result.  Riverside  Contracting  Co. 
V.  Xew  York  (N.  Y.)  19180-1075. 

2.  Lienable  CIaim.s. 

5.  Improvements  by  vendee  under  contract 
of  sale, — WTiere  improvements  on  land  are 
made  by  a  vendee  in  possession  under  a  con- 
tract of  sale,  the  vendor  on  retaking  the  land 
after  a  default  does  not  take  it  subject  to  a 
mechanic's  lien  for  the  improvements  though 
by  the  contract  of  sale  he  consented  to  the 
improvements  and  agreed  to  advance  money 
therefor.  John  A.  Marshall  Brick  Co.  v.  York 
Farmers  Colonization  Co.  (Can.)  1918C-1013. 

(Annotated) 

6.  Lending  money  to  pay  wages. — One 
merely  paying  the  wages  of  a  building  con- 
tractor's employees,  under  agreement  to  do  so 
and  to  be  repaid  the  same  with  a  commis- 
sion, cannot  have  a  lien  for  their  labor; 
he  in  effect  loaning  money  to  the  contractor 
to  enable  him  to  carry  on  the  work,  for 
which  there  can  be  no  lien.  Sweet  v.  Fresno 
Hotel  Co.   (Cal.)   1918I>-346.  (Annotated) 

7.  Person  furnishing  labor  and  paying 
wages. — A  contract  of  S.  with  F.,  building 
contractor,  whereby  S.  agrees  to  furnish  all 
common  and  carpenter  labor  for  completion 
of  building,  and  to  pay  all  wages  that  may 
become  due  the  carpenters  and  common  lab- 
orers, and  F.  agrees  for  such  labor  furnished 
to  pay  to  S.  each  month,  with  commission, 
the  amount  of  wages  S.  has  paid  to  such 
laborers  during  the  preceding  month,  is  one 
1;o  bestow  labor  on  the  building,  entitling  S. 
to  a  lien  for  labor  furnished  thereunder;  and 
not  a  contract  for  loan  of  money,  though  it 
is  provided  F.  shall  make  out  and  deliver  to 
S.  weekly  pay  rolls,  and  that  it  is  understood 
that  all  men  employed  shall  be  satisfactory 
to  F.,  and  that  he  shall  have  the  right  to 
discharge  any  unsatisfactory  to  him,  and  to 
replace  them  with  others  selected  bv  him. 
Sweet  V.  Fresno  Hotel  Co.  (Cal.)   1918D-346. 

(Annotated) 

8.  The  value  of  the  labor  furnished  by  a 
subcontractor  under  contract  to  furnish  the 
•carpenter  and  common  labor  to  complete  the 
building,  and  see  that  such  laborers  worked 
when  wanted,  and  attend  to  paying  their 
wages,  for  which  the  subcontractor  is  enti- 
tled to  a  lien,  is  the  amount  of  the  reason- 
able wages  paid  to  the  men,  with  an  addition- 
al sum  for  the  value  of  the  subcontractor's 
services,  which  the  contract  requires  him  to 
perform.  Sweet  v.  Fresno  Hotel  Co.  (Cal.) 
1918D-346. 


9.  Interest  paid  by  contractor. — A  contrac- 
tor cannot  increase  the  burden  of  the  owner 
by  an  agreement  with  the  lien  claimant,  made 
after  the  work  is  done,  to  pay  interest  at  an 
increased  rate;  but  in  such  case,  as  in  any 
other,  there  is  right  to  interest  at  the  legal 
rate,  the  amount  owing,  as  well  as  the  time 
of  payment,  being  fixed  and  certain.  Sweet 
V.  Fresno  Hotel  Co.  (Cal.)  1918D-346. 

3.  Notice  or  Statement  of  Claim. 

10.  A  claim  of  lien  by  another  than  the 
chief  contractor,  containing  a  statement  of 
the  particulars  required  by  Code  Civ.  Proc. 
§  1187,  with  nothing  contradictory  or  destruc- 
tive thereof,  is  sufficient.  Sweet  v.  Fresno 
Hotel   Co.    (Cal.)    1918D-346. 

11.  Name  of  employer  of  lien  claimant. — 
Statement  in  claim  of  lien  by  subcontrac- 
tors, that  the  contract  made  by  them  with 
F.  &  Co.,  the  contractor,  was  made  by  the 
latter  "on  behalf  of  and  for  said  owner," 
does  not  vitiate  the  claim  as  not  giving  the 
name  of  the  person  by  whom  they  were  em- 
ployed; the  quoted  phrase  being  manifestly 
inserted  on  the  theory  of  the  principal  con- 
tract being  void  for  failure  to  make  twenty- 
five  per  cent  of  the  contract  price  payable 
thirty-five  days  after  completion,  in  which 
case  Code  Civ.  Proc.  §  1184,  provides  that 
work  and  material  by  others  than  the  prin- 
cipal contractor  shall  be  deemed  done  and 
furnished  at  the  instance  of  the  owner.  Sweet 
V.   Fresno  Hotel  Co.    (Cal.)    1918D-346. 

12.  Statement  of  value  as  including  profit. 
— There  is  no  variance  between  claim  of  lien 
of  subcontractors  for  value  of  work  and  ma- 
terial up  to  cessation  of  labor,  estimated  at 
contract  price,  stated  also  to  be  the  value 
thereof,  and  evidence  that  this  was  the  value 
of  the  work  and  material,  plus  twenty  per 
cent  for  their  profits  as  subcontractors. 
Sweet  V.  Fresno  Hotel  Co.   (Cal.)   1918D-346. 

13.  Variance  between  statement  and  at- 
tached contract. — It  is  no  ground  for  objec- 
tion to  claim  of  lien  by  S.,  stating  that  the 
work  done  by  him  was  under  contract  be- 
tween him  and  the  contractor,  that  the  con- 
tract, made  a  part  of  the  claim  of  lien, 
though  signed  in  his  name,  purported  to  be 
a  contract  of  S.  &  Co.,  it  appearing  by  the 
evidence  that  S.  &  Co.  was  merely  a  name 
under  which  S.  was  doing  business,  and  that 
no  one  else  was  interested  therein;  it  not 
being  necessary  that  the  claim  make  this  ex- 
planation, but  enough  that  it  asserts  the  ulti- 
mate fact  that  he  made  the  contract.  Sweet 
V.  Fresno  Hotel  Co.   (Cal.)  1918D-346. 

4.  Priority. 

14.  Between  lien  claimant  and  assignee  of 
fund  due  to  contractor. — Lien  Law,  §  25  (Mc- 
Kinney's  Consol.  Laws.  Book  32,  p.  97),  giv- 
ing persons  having  liens  under  contracts  for 
public  improvements  standing  in  equal  de- 
grees as  colaborers  or  materialmen  priority 
according  to  the  date  of  filing  their  respec- 
tive liens,  even  if  construed  in  the  light  of 
section  13  (McKinney's  Consol.  Laws.  Book 
32,  p.  Go)  providing  that  laborers  for  daily 
or  weekly  wages  shall  have  preference  over 


MENTAL  ANGUISH— MISTAKE. 


161 


all  other  claimants,  does  not  give  a  lienor 
preference  over  a  prior  absolute  assignee  of 
moneys  due  under  tlie  contract.  Riverside 
Contracting  Co.  v.  New  York  (N.  Y.)  1918C- 
1075.  (Annotated) 

15.  Under  Lien  Law,  §  25  (McKinney'a 
Consol.  Laws,  Book  32,  p.  97),  giving  persons 
having  liens  under  contracts  for  public  im- 
provements standing  in  equal  degrees  as 
colaborers  or  materialmen  priority  according 
to  the  date  of  filing  their  respective  liens, 
the  exclusion  of  evidence  offered  by  a  laborer 
or  materialman  for  the  purpose  of  showing 
that  his  notice  of  lien  was  filed  in  the  comp- 
troller's ofiGice  before  an  assignment  by  the 
contractor,  was  error,  since  the  stamp  of  a 
municipal  official  is  not  conclusive  proof, 
as  between  the  original  parties,  of  the  time 
of  filing  a  paper  in  his  office.  Riverside  Con- 
tracting Co.  V.  New  York  (N.  Y.)  1918C-1075. 

(Annotated) 


its  property  of  every  kind,  real,  personal,  and 
mixed,  is  not  restricted  to  property  used  in 
connection  with  the  mines,  smelter,  or  rail- 
road of  the  grantor.  Martin  v.  Bankers  Trust 
Co.   (Ariz.)   1018E-1240. 

2.  Evidence  as  to  care  of  property  of  lessee. 
— In  a  replevin  suit  by  the  successor  of  the 
lessee  of  mining  property,  where  the  question 
whether  plaintiff  was  responsible  for  damages 
to  the  mine  by  squeezing  and  the  accumula- 
tion of  water  is  one  of  the  important  ques- 
tions in  the  case,  testimony  as  to  conversa- 
tions between  plaintiff's  mine  superintendent 
and  the  representative  of  a  defendant  rela- 
tive to  leaving  a  fireman  in  charge  of  the 
pump  to  keep  it  running,  and  as  to  similar 
conversations  between  plaintiff's  mine  super- 
intendent and  a  party  who  executed  the 
covu't's  orders  in  taking  possession  of  the 
mine  at  expiration  of  the  lease,  are  admis- 
sible. Bache  v.  Central  Coal,  etc.  Co.  (Ark.) 
1918E-198. 


MENTAL  ANGUISH. 

As  element  of  damage  in  action  for  libel,  see 
Libel  and  Slander,  66. 

Recovery  for  mental  anguish  because  of  fail- 
ure to  deliver  death  message,  see  Telb- 
o&APHS  AND  Telephones,  9. 


METAL. 

Judicial  notice  of  tendency  of  metal  to  at- 
tract lightning,  see  Evidence. 


MILEAGE. 

Allowance  for  mileage  to  county  commission' 
er,  see  Public  Officers,  8, 


MILITARY  CAMPS. 

Condemnation  of  land  for  military  camps,  sea 
Eminent  Domain,  8,  14. 


MINIMUM  WAGE. 

Validity    of    statute    establishing    minimum 
wage  for  women,  see  Labor  Laws,  4,  5. 


MINISTER. 

Failure  to  administer  communion  as  defama- 
tion of  character,  see  Religious  Socie- 
ties, 4. 

Liability  for  issuance  of  letter  forbidding 
communicants  to  read  or  subscribe  to 
certain  newspapers,  see  Religious  Socie- 
ties, 6. 


MINORITY  STOCKHOLDERS. 

Protection  of  rights,  see  Corporations,  42. 


MINORS. 


See  Infants. 


MILITARY   LAW. 

See  Abmt  and  Navt. 

MINERALS. 

See  Mines  and  Minerals. 


MISNOMER. 

Designating  legatee  by  nickname,  see  Wills, 
29-34,  41. 

Of  landowner  in  tax  foreclosure  proceeding, 
see  Taxation,  35,  36. 

Waiver  of  misnomer  of  municipalty,  see  Mu- 
nicipal Corportions,  33,  34 


MINES  AND  MINERALS. 

Limitation  of  action  to  recover  mining  claim, 
see  Limitation  of  Aotions,  5-7. 

Rights  of  life  tenant  as  to  working  or  open- 
ing mines  or  to  royalties  therefrom,  see 
Life  Estates,  6-9. 

Taxation,  see  Taxation,  6. 

^    1.  Property   covered   by   deed   of   trust. — 
A  deed  of  trust  by  a  mining  company  of  all 
Ann.  Cas.  Dig.  1918C-E.— 11. 


MISREPRESENTATION. 

See  Fraxh);   Insurance;   Fibb  Insurance; 
Life  Insurance. 


MISTAKE. 

As  ground  for  rescission,  cancellation  or  ref- 
ormation, see  Rescission,  Cancella- 
tion AND  Reformation,   1-4,   12. 


162 


AK:C.  CAS.  DIGEST   (1918C-1018E). 


As  ground  for  setting  aside  award  of  arbi- 
trators, see  Arbitbation  and  Awabd,  3- 
9,  11-15. 

In  verdict,  see  Vebdict,  5,  8,  9. 


MITIGATION    OF   DAMAGES. 

See  Damages,  1. 

Duty  of  owner  of  land  condemned  to  mini- 
mize damage  to  growing  crops,  see  Emi- 
nent Domain,  12. 

In  action  for  libel,  see  Libel  aud  Slandeb, 
63,  64. 


MONET   HAD   AND    RECEIVED. 

See  Assumpsit,  1-6. 

MONOPOLIES. 

1.  Rule  of  board  of  trade. — In  a  suit  to 
restrain  a  board  of  trade  from  enforcing  a 
rule  prohibiting  its  members  from  purchas- 
ing or  offering  to  purchase  grain  between 
sessions  of  the  board  at  a  price  other  than 
the  closing  bid,  as  in  violation  of  the  Anti- 
trust Act,  July  2,  1890,  c.  647,  26  Stat.  209 
(9  Fed.  St.  Ann.  [2d  ed.]  644)  it  was  error 
to  strike  from  the  answer  allegations  con- 
cerning the  history  and  purpose  of  such  rule, 
and  to  exclude  evidence  on  that  subject, 
as  the  legality  of  an  agreement  or  regulation 
does  not  depend  on  whether  it  restrains  com- 
petition, and  the  true  test  of  legality  is 
whether  the  restraint  imposed  is  such  as 
merely  regtilates  or  such  as  may  suppress  or 
even  destroy  competition,  and  to  determine 
that  question  the  court  must  consider  the 
facts  peculiar  to  the  business,  its  conditions 
before  and  after  the  restraint  was  imposed, 
the  nature  of  the  restraint,  and  its  effect 
actual  or  probable.  Board  of  Trade  v.  United 
.State  (U.  S.)   1918D-1207.  (Annotated) 

2.  Such  rule  is  a  reasonable  regulation  con- 
sistent with  the  provisions  of  the  anti-trust 
act,  where  it  merely  restricts  the  period  of 
price-making  by  prohibiting  price-making 
after  the  close  of  the  session,  and  is  restrict- 
ed in  its  operation  to  the  purchase  of  grain 
'"to  arrive"  or  grain  already  in  transit,  which 
constitute  a  small  part  of  the  day's  sales  of 
grain,  and  applies  only  during  a  small  part 
of  the  business  day  and  only  to  grain  shipped 
to  Chicago,  and  not  to  other  markets  to  which 
most  of  the  territory  tributary  to  Chicago 
is  also  tributary,  and  where  it  has  no  appre- 
ciable effect  on  general  market  prices,  but 
helps  to  improve  market  conditions  by  creat- 
ing a  public  market  for  grain  "to  arrive"  in 
the  place  of  private  bids,  by  bringing  more 
of  the  trading  in  such  grain  into  the  regular 
market  hours,  by  bringing  buyers  and  sellers 
into  more  direct  relations,  by  distributing 
the  business  in  such  grain  among  a  larger 
number  of  receivers  and  commission  mer- 
chants, by  increasing  the  number  of  country 
dealers,  supplying  them  more  regularly  with 
bids,  and  increasing  the  number  of  bids  re- 
ceived by  them  from  competing  markets,  by 


eliminating  risks  necessarily  incident  to  a 
private  market  and  enabling  country  dealers 
to  do  business  on  a  smaller  margin  by  en- 
abling them  to  sell  grain  "to  arrive"  which, 
they  would  otherwise  have  been  obliged  to 
ship  to  commission  markets  or  sell  for  future 
delivery,  by  enabling  Chicago  grain  merchants 
to  trade  on  a  smaller  margin,  and  by  enabling 
those  engaged  in  trading  in  grain  to  arrive 
to  fulfil  their  contracts  by  tendering  grain 
to  arrive  on  any  railroad,  whereas  formerly 
shipments  had  to  be  made  over  the  particular 
railroad  designated  by  the  buyer.  Board  of 
Trade  v.  United  States   (U.  S.)    1918D-1207. 

(Annotated) 
3.  Control  of  price  on  resale. — Contracts 
between  a  manufacturer  of  graphophones, 
etc.,  as  assignee  of  patents,  or  its  agents,  and 
all  dealers  permitted  to  sell  them  through- 
out the  country,  which  fixed  the  prices  at 
which  the  articles  might  be  resold,  and 
covenanting  that  underselling  is  an  infringe- 
ment of  the  patents,  though  speaking  of  the 
contract  as  a  license,  is  not  justified  under 
the  guise  of  the  monopoly  granted  by  the 
patent  law.  Boston  Store  v.  American 
Graphophone  Co.  (U.  S.)  1918C-447. 

(Annotated) 


MORTALITY  TABLES. 

Judicial  notice  of,  see  Evidence,  4. 

MORTGAGES  AND  DEEDS  OF  TRUST. 

1.  Mortgage    by     Conveyance    Absolute    iq 

Form,  162. 

2.  Property  and  Title  Conveyed,  163. 

3.  The  Mortgage  Debt,  1(53. 

4.  Assignment  of  Mortgage,  163. 

5.  Foreclosure  of  Mortgage,  163. 

6.  Sales  for  Payment  of  Mortgage  Debt,  163. 

See  Chattel  Mortgages. 

Bar  from  raising  question  whether  transac- 
tion mortgage  as  justifying  court  in 
failing  to  make  finding,  see  Trial,  11. 

In  excess  of  actual  debt  as  fraudulent  con- 
veyance, see  Fraudulent  Sales  and 
Conveyances,   1. 

Inurement  of  after-acquired  title  of  mort- 
gagor to  instrument  executed  while  prop- 
erty was  subject  to  lien  of  lis  pendens, 
see  Lis  Pendens,  3,  4. 

Jurisdiction  of  state  court  to  foreclose  as 
affected  by  subsequent  proceedings  in 
bankruptcy,  see  Bankruptcy,  3. 

Notice  of  failing  circumstances  of  mortgagor 
as  affecting  priority,  see  Bankruptcy,  4. 

Property  covered  by  deed  of  trust  of  mining 
company,  ^ee  SIines  and  Minerals,  1. 

Validity  of  mortgage  on  property  purchased 
pendente  lite,  see  Lis  Pendens,  2,  3. 

1.   Mortgage     by     Conveyance     Absolute     in 
Form. 

1.  Failure   of   grantor   to    assert   rights. — 
If,  on  the  face  of  a  deed  and  contract  con- 


MORTGAGES  AXD  DEEDS  OF  TEUST. 


163 


cerning  mining  properties,  the  transaction 
clearly  amounts  to  a  mortgage  of  the  prop- 
erties, the  mortgagee  gets  no  title  by  failure 
of  the  mortgagor  to  assert  his  rights  in  the 
property  as  such,  because  once  a  mortgage 
alwavs  a  mortgage.  Elling  v.  Fine  (Mont.) 
1918C-752. 

2.  Effect  of  laches. — Defendant,  who  sold 
mining  property,  the  buyer  and  his  wife  exe- 
cuting a  contract  to  reconvey  part  of  the 
property,  so  that  prima  facie  the  transac- 
tion was  a  sale  with  option  to  repiirchase, 
is  barred  by  laches  from  contending  that  the 
transaction  was  intended  as  a  mortgage,  a 
conclusion  to  reach  which  extrinsic  evidence 
was  necessary,  he  having  stood  idly  by  for 
more  tiian  thirteen  years  while  his  grantee 
treated  the  property  as  his  own,  spent  money 
upon  it,  paid  taxes  and  died,  while  his  execu- 
tors operated  the  property,  improved  it,  and 
paid  taxes,  and  while  it  passed  through  pro- 
bate proceedings  and  was  formally  distribu- 
ted.   Elling  v.  Fine  (Mont.)   1918C-752. 

(Annotated) 

3.  That  a  grantor  claiming  his  deed  was  a 
mortgage  delayed  in  asserting  his"  rights 
against  his  grantee  and  the  latter's  executor 
and  heirs  on  account  of  lack  of  funds,  be- 
cause he  "didn't  want  to  start  anything"  un- 
til satisfied  of  his  ability  '"to  go  through 
with  it,"  is  not  an  excuse  for  the  mortgagor's 
laches  in  delaying  to  contend  that  the  trans- 
action involved  was  a  mortgage.  Elling  v. 
Fine    (Mont.)    1918C-752.  (Annotated) 

4.  Presumption. — ^WTiere  the  owners  of 
mining  property  execute  a  deed  conveying 
separate  lodes  and  mill  sites,  and  the  grantee 
and  his  wife  execute  a  contract,  agreeing  to 
reconvey  on  payment  only  ten  lodes  and  mill 
Bites,  comprised  in  a  particular  group,  con- 
taining no  reference  to  a  loan,  no  mention 
of  any  indebtedness,  and  no  engagement  by 
the  grantors  to  pay  or  do  anything,  the 
transaction  is  prima  facie  a  sale  to  the  gran- 
tee, with  an  option  to  the  grantors  to  re- 
purchase.    Elling  V.  Fine  (Mont.)  1918C-752. 

5.  Burden  of  proof. — One  claiming  that  a 
deed  was  intended  as  a  mortgage  has  the 
burden  of  proof  where  resort  to  extrinsic 
evidence  is  necessary.  Elling  v.  Fine  (Mont.) 
1918C-752. 

2.  Property  and  Title  Conveyed. 

6.  Nature  of  mortgagee's  interest. — In  this 
jurisdiction,  a  mortgage  on  real  estate  is 
simpl}'  security  for  tlic  payment  of  a  debt, 
leaving  the  legal  title  to  the  mortgaged  prem- 
ises in  the  mortgagor.  Cleveland  v.  Bateman 
(N.  M.)  1918E-1011. 

3.  The  Mortgage  Debt. 

7.  Mortgage  for  sum  greater  than  debt. — 
Though  a  mortgage  is  for  a  greater  amount 
than  the  note  secured  thereby,  the  mort- 
gagee's lien  is  in  fact  no  greater  than  the 
amount  of  the  note  and  interest  thereon,  and 
where  that  is  satisfied  out  of  the  cash  real- 
ized, he  receives  no  title  by  buying  in  at 
foreclosure  sale,  and  can  convey  none  to  a 
third  party.  Thomas  v.  Scougale  (Wash.) 
1918C-452.* 


4.  Assignment  of  Mortgage. 

8.  Assignment  of  notes. — A  bona  fide  hold- 
er of  notes  secured  by  deed  of  trust  takes 
the  deed  freed  from  defenses  which  might 
have  been  urged  against  the  original  mort- 
gagee and  holder  of  the  notes;  the  deed 
being  treated  as  the  notes.  Peninsula  Bank 
v.  Wolcott    (U.  S.)    1918C-477. 

(Annotated) 

9.  Where  a  bank  in  due  course  of  business, 
without  notice  that  the  makers  were  insol- 
vent, took  notes  secured  by  a  deed  of  trust, 
the  fact  that  the  makers  were  adjudged  bank- 
rupts within  less  than  four  months  does  not 
impair  the  security.  Peninsula  Bank  v.  Wol- 
cott (U.  S.)   1918C-477. 

5.  Foreclosure  of  Mortgage. 

10.  Parties. — A  decree  of  foreclosure  is  a 
nullity  as  to  the  owner  of  the  equity  of  re- 
demption not  made  a  party  defendant,  but, 
under  the  registry  acts,  a  mortgagee,  whose 
mortgage  is  duly  recorded,  and  who  has  no 
actual  notice  at  the  time  he  commences  fore- 
closure proceedings,  need  only  make  a  party 
defendant  any  subsequent  purchaser  or  in- 
cumbrancer who  has  complied  with  the  reg- 
istry acts.  Wolfenberger  v.  Hubbard  (Ind.) 
1918C-81. 

6.  Sales  for  Pasmient  of  Mortgage  Debt. 

11.  Nature  of  power  of  sale. — In  this  juris- 
diction, a  power  of  sale  contained  in  a  real 
estate  mortgage  is  coupled  with  an  interest, 
hence  the  power  is  not  revoked  by  the  death 
of  the  mortgagor,  notwithstanding  the  fact 
that  such  a  mortgage  merely  gives  the  mort- 
gagee a  lien  on  the  property  or  is  a  mere 
security  for  the  debt.  Cleveland  v.  Bateman 
(X.   MO    1918E-1011.  (Annotated) 

12.  Requisites  of  conveyance. — (a)  All  the 
essential  requisites  of  the  power  contained  in 
a  mortgage  must  be  strictly  complied  with. 

(b)  Recitals,  contained  in  a  deed  executed 
by  virtue  of  a  power  of  sale  contained  in  a 
mortgage,  that  proper  notice  of  sale  was 
given  are  prima  facie  proof  of  such  facts  as 
against  the  parties  and  privies  to  the  instru- 
ment containing  the  power,  and  the  burden 
of  oA'crcoming  such  proof  rests  upon  the 
party  asserting  the  contrary.  Cleveland  v. 
Bateman  (X.  M.)  1918E-1011. 

13.  In  whose  name  executed. — ^A  mortgagee 
in  making  a  conveyance  imder  a  power  in  a 
mortgage  should  not  execute  the  conveyance 
in  his  own  name  but  in  that  of  his  principal, 
as  the  latter's  attorney  in  fact.  Cleveland  v. 
Bateman   (N.  M.)  1918E-1011. 

14.  Right  of  mortgagee  to  purchase. — (a) 
A  mortgagee,  in  a  mortgage  deed  which  con- 
tains a  power  of  sale  on  default,  cannot  be- 
come a  purchaser  at  a  sale  which  he,  him- 
self, makes  under  the  power,  either  directly 
or  through  the  agency  of  a  third  person, 
unless  expressly  permitted  by  the  terms  of 
the  instrument. 

(b)  A  mortgagee's  purchase  at  his  own 
foreclosure  sale,  when  not  authorized,  is  void- 
able only,  giving  to  the  mortgagor  an  election 


164 


ANN.  CAS.  DIGEST  (1918C-1918E). 


either  to  ratify  and  affirm  the  sale  or  to  avoid 
it  and  have  it  set  aside. 

(c)  The  mortgagor's  option  must  be  exer- 
cised within  a  reasonable  time  and  before  the 
property  has  passed  into  the  hands  of  an 
innocent  pureliaser  for  value  and  without 
notice.  Cleveland  v.  Bateman  (N.  M.) 
1918E-1011. 


MOTHER. 

See  Parent  and  Child. 


MOTIVE. 

Evidence  to  show  motive  of  insured  to  com- 
mit suicide,  see  Life  Insxtaance,  15. 


MOTOR  VEHICUBS. 

See  Automobiles. 

Regulation  where  engaged  in  operating  for 

hire,  see  Cabbiees  of  Passengebs,  19- 

20. 


MOVING   PICTURE   FILMS. 

Damages  recoverable  against  express  com- 
pany for  delay  in  transportation,  see 
Carbiebs  of  Goods,  21. 


MUNICIPAL  CORPORATIONS. 

1.  Incorporation  and  Charter,  164. 

2.  Legislative  Control,  165. 

3.  Powers: 

a.  In  General,    165. 

b.  Power  to  Contract,  165. 

c.  Power  to  Operate  Public  Utilities,  165. 

4.  Ordinances  and  Resolutions,  165. 

5.  Torts: 

a.  Public  or  Governmental  Functions  or 

Duties,  166. 

b.  Private,  Local  or  Corporate  Functions 

or  Duties,   166. 

c.  Torts    of    Officers,    Agents    and    Em- 

ployees, 166. 

d.  Notice  of  Claim,    167. 

6.  Action  against  Municipalities,  167. 

Assignment  of  moneys  due  under  working 
contracts  with  municipalities,  see  As- 
signments, 3,  5-8,  10-14. 

Construction  of  public  improvement  contract 
providing  for  retention  of  funds,  see 
Mechanics'  Liens,  1. 

Initiative  ordinances,  see  Initiative  and 
Refekendum,  1-2. 

Liability  for  injuries  arising  from  defects  in 
streets,  see  Streets  and  Highways,  11- 
17. 

Liability  for  personal  injury  resulting  from 
permitting  use  of  streets  for  racing  and 
testing    automobiles,    see    Stbeets    and 

.      Highways,  lO. 


Party  to  condemnation  proceedings  as  affect- 
ing right  to  change  of  venue  because  of 
prejudice  or  interest,  see  Venue,  2-4. 

Power  of  eminent  domain,  see  Eminent  Do- 
main,  4,   5,   7. 

Power  to  compromise  tax  suit,  see  Taxa- 
tion, 34. 

Power  to  grant  exemption  front  taxation,  see 
Taxation,  33,  46. 

Power  to  pass  Sunday  ordinances,  see  Sun- 
days   AND    HOLLIDAYS,    1-3. 

Power  to  regulate  storing  of  gasoline  etc., 
see  Explosions  and  Explosives,  1-3. 

Power  to  tax,  see  Taxation,  2. 

Right  to  remove  spur  tracks  of  street  rail- 
way, see  Stbeet  Railways,  3-5. 

Statute  authorizing  formation  of  lighting 
districts,  see  Lighting  Districts,  1-3. 

Validity  of  ordinance  requiring  payment  of 
license  by  hawkers  and  peddlers,  see 
Hawkers  and  Peddlers,  1-4. 

1.  Incorporation  and  Charter. 

1.  Statute  giving  option  to  city  as  to  form 
of  government. — Laws  1914,  c.  444,  setting 
forth  a  number  of  forms  of  government  for 
cities,  and  authorizing  any  city  of  the  second 
or  third  class  to  adopt  any  of  such  forms  of 
government  by  a  majority  vote  of  its  elec- 
tors, does  not  violate  Const,  art.  3,  §  1,  pro- 
viding that  the  legislative  power  shall  be 
vested  in  the  Senate  and  Assembly,  or  article 
12,  §  1,  providing  that  it  shall  be  the  duty 
of  the  legislature  to  provide  for  the  organi- 
zation of  cities  and  incorporated  villages,  or 
section  2,  providing  that  laws  shall  not  be 
passed,  except  in  conformity  with  the  con- 
stitution, or  any  other  provision  of  the  state 
or  federal  constitution.  Cleveland  v.  Water- 
town  (N.  Y.)  1918E-574.  (Annotated) 

2.  Laws  1914,  c.  444,  §  37,  providing  that, 
under  any  of  the  plans  of  city  government 
therein  defined,  the  council,  subject  to  the 
provisions  of  that  act  and  applicable  general 
laws  not  inconsistent  therewith,  and  also  sub- 
ject to  the  civil  service  law,  and  the  provi- 
sions of  all  laws  regulating  the  granting  of 
franchises,  the  lease  or  sale  of  city  real  es- 
tate, and  the  incurring  of  municipal  indebted- 
ness, may  confer  by  ordinance  upon  any 
officer  or  employee  any  power,  or  impose  upon 
any  officer  or  employee  any  duty,  thereto- 
fore conferred  or  imposed  upon  any  officer 
or  employee  by  law,  and  abolish  the  office 
or  employment  of  any  officer  or  employee 
whose  powers  or  duties  have  ceased,  and  regu- 
late by  ordinance  the  exercise  of  any  power 
and  the  performance  of  any  duty  by  any 
officer  or  employee,  is  not  invalid,  as  it  does 
not  authorize  the  covmcil  to  add  to  or  take 
from  the  power  already  possessed  by  the  city, 
but  only  to  transfer  and  distribute  the  pow- 
ers the  city  officially  has  among  the  officials 
of  the  new  government  necessary  for  the 
proper  management  of  the  city's  affairs. 
Cleveland  v.  Watertown  (N.  Y.)  1918E-574. 

(Annotated) 

3.  It  is  within  the  legislative  province  to 
direct  in  what  way,  through  what  board  of 
municipal  officers  or  agents,  or  by  what  mu- 
nicipal officers,  the  powers  given  a  city  shall 


MUNICIPAL  COEPORATIONS. 


165 


be  exercised.    Cleveland  v.  Watertown  (X.  Y.) 
1918E-574.  (Annotated) 

4.  Laws  1914,  c.  444,  is  not  invalid,  as  dele- 
gating the  power  to  make  a  charter  for  a  city 
or  village,  as  the  act  is  complete  in  itself, 
and  is  in  legal  effect  a  new  charter,  which 
the  city  does  not  make,  but  which  it  accepts 
in  place  of  the  existing  charter,  and  it  is 
competent  for  the  legislature  to  frame  a  . 
charter  and  permit  the  electors  to  determine 
whether  or  not  they  will  adopt  it.  Cleve- 
land V.  Watertown  (N.  Y.)  1918E-574. 

(Annotated) 

5.  Laws  1914,  c.  444,  is  not  invalid,  because 
it  delegates  to  cities  adopting  the  forma  of 
government  therein  specified,  power  to  regu- 
late assessments,  public  safety,  health,  char- 
ity, and  plumbers'  licenses,  since,  while  the 
exercise  of  powers  relating  to  these  subjects 
in  a  certain  sense  involves  state  functions, 
as  does  the  exercise  of  powers  relating  to  all 
officers  of  every  city  or  A'illage,  they  are 
powers  which  are  not  committed  by  the  con- 
stitution solely  to  the  legislature,  but  such 
as  it  may  commit  to  a  locality  in  so  far  as 
its  government  is  concerned.  Cleveland  v. 
Watertown    (N.   Y.)    1918E-574. 

(Annotated) 

6.  Power  of  municipality  to  attack  valid- 
ity.— ^A  municipal  eoiporations,  being  a  crea- 
ture of  the  legislature,  cannot  question  the 
authority  of  its  creator  to  amend  or  abrogate 
its  charter,  except  in  so  far  as  the  legislature 
attempts  to  exceed  its  own  constitutional 
authority.  But  the  general  assembly  is  as 
well  bound  not  to  violate  the  mandates  ex-  4, 
pressed  in  the  constitution  as  a  corporation 
created  by  the  legislature  is  controlled  by  its 
statutes.  Hence  a  municipal  corporation, 
having  authority  to  prosecute  and  defend 
suits  in  the  courts,  may  invoke  the  protection  , 
afforded  by  the  constitution  to  prevent  a  vio- 
lation of  its  rights.  The  decision  to  the  con- 
trary in  Mayor  and  Council  of  the  City  of 
CarroUton  v.  Board  of  Metropolitan  Police 
et  al.  21  La.  Ann.  447,  is  overruled.  Gretna 
T.  Bailey  (La.)  1918E-566. 

2.  Legislative  Control. 

7.  Statute  providing  for  recall  of  officer. — 
Acts  1911,  p.  345,  §  14,  providing  for  recall 
of  city  commissioner  under  the  commission 
form  of  government  for  the  city  of  Mobile, 
created  by  the  act,  is  void  as  violating  Const. 
1901,  §  175,  providing  that  municipal  officers 
may  be  removed  by  certain  courts  for  causes 
specified  in  section  173;  since  the  act  fixes 
the  term  of  office  at  three  years,  and  the 
additional  phrase  "until  his  successor  is  elec- 
ted and  qualified"  does  not  make  the  term 
indefinite  or  uncertain,  nor  does  section  14 
operate  upon  the  term  to  cut  it  doAvn  to 
an  indefinite  or  unfixed  term,  but  operates 
only  upon  the  individual  commissioner.  Wil- 
liams V.  State  (Ala.)  1918D-869. 

(Annotated) 

3.   Powers. 

a.  In  General. 

8.  A  municipal  corporation  possesses  such 


powers,  and  such  only,  as  the  state  expressly 
or  by  necessary  implication  confers  upon  it, 
subject  to  addition  or  diminution  by  the  state 
at  its  supreme  discretion,  since  a  municipal- 
ity is  a  creature  of  the  state,  and  continues 
its  existence  under  the  sovereign  will  and 
pleasure.  Walker  v.  Richmond  (Ky.)  1918E- 
1084. 

b.  Power  to  Contract. 

9.  Parties  who  deal  with  a  municipal  cor- 
poration are  required  to  know  the  extent  of 
its  authority,  and  act  at  their  peril,  unless 
the  authority  exists.  Walker  v.  Richmond 
(Ky.)   1918E-1084. 

10.  Retaining  benefits  on  repudiation  of 
ultra  vires  contract. — Wheie  a  municipality, 
in  consideration  of  a  property  owner's  set- 
ting his  fence  back  twelve  feet,  agreed  that 
the  owners  of  the  property  should  never  be 
required  to  maintain  a  sidewalk,  and  that  the 
city  itself  would  maintain  a  pavement,  a 
contract  which  was  ultra  vires,  the  city  can- 
not retain  the  benefits  of  the  transaction, 
Avhile  repudiating  the  contract.  Walker  v. 
Richmond  (Ky.)  1918E-1084. 

c.  Power  to  Operate  Public  Utilities. 

11.  Maintaining  ice  plant  and  cold  storage 
system. — The  charter  of  the  town  of  Arling- 
ton (Acts  1890-1891,  p.  867;  Acts  1905,  p. 
607;  Acts  1913,  p.  492)  confers  on  the  au- 
thorities of  the  municipality  the  power  to 
establish  and  maintain  an  "ice  plant  and  cold 
storage"  within  such  municipality  for  the 
benefit  of  the  inhabitants  thereof,  whenever 
they  have  complied  with  the  preliminary 
steps'  for  such  purpose  as  provided  by  the 
constitution  and  statute  laws  of  the  state. 
Saunders  v.  Arlington  (Ga.)  1918D-907. 

(Annotated) 

12.  Sale  of  fuel  to  inhabitants. — ^Rev.  St. 
Me.  1903,  c.  4,  §  87,  authorizing  any  city  or 
town  to  establish  and  maintain  a  permanent 
wood,  coal  and  fuel  yard  for  the  purpose 
of  selling  wood,  coal,  and  fuel  to  its  in- 
habitants at  cost,  does  not  take  the  property 
of  taxpayers  for  private  uses  in  violation 
of  the  Fourteenth  Amendment,  especially 
where  the  highest  court  of  the  state  has  de- 
clared such  purpose  to  be  a  public  one. 
Jones  V.  Portland  (U.  S.)   1918E-660. 

(Annotated) 

4.  Ordinances  and  Resolutions. 

13.  Judicial  review  of  ordinance. — Although 
the  action  of  a  council  in  enacting  ordinances 
under  its  delegated  police  power  is  subject  to 
judicial  review,  yet  such  exercise  of  its  dis- 
cretion may  be  set  aside  by  the  courts  only 
when  they  can  say  the  council  has  acted  in 
an  arbitrary  or  unreasonable  manner.  Pierce 
Oil  Corp.  v.  Hope  (Ark.)  1918E-143. 

14.  Presumption  of  validity. — The  action  of 
a  council  in  passing  ordinances  under  its 
delegated  police  power  is  presumed  to  be 
legal,  until  the  contrary  is  made  to  appear. 

iPierce  Oil  Corp.  v.  Hope  (Ark.)  1918E-143. 

15.  Every  intendment  is  to  be  made  in  fa- 
vor of  the  lawfulness  of  the  exercise  of  munic- 


IGG 


AmV.  CAS.  DIGEST   (1918C-10l8Ej. 


ipal  power  making  regulations  to  promote  tlie 
public  health  and  safetj',  it  not  being  the 
province  of  the  courts,  except  in  clear  cases, 
to  interfere  with  the  exercise  of  the  power 
reposed  by  law  in  municipal  corporations  for 
the  protection  of  local  rights  and  the  health 
and  welfare  of  the  people  of  the  community. 
Pierce  Oil  Corp.   v.  Hope    (Ark.)    1918E-143. 

16.  Effect  of  express  grant. — Where  the 
legislature,  in  terms,  confers  upon  a  nuinic- 
ipal  corporation  the  power  to  pass  ordinances 
of  a  specified  and  defined  character,  if  the 
power  thus  delegated  be  not  in  conflict  with 
the  constitution,  an  ordinance  passed  pursu- 
ant thereto  cannot  be  impeached  as  invalid 
because  it  would  have  been  regarded  as  un- 
reasonable if  it  had  been  passed  under  the 
incidental  power  of  the  corporation,  or  under 
a  grant  of  power  general  in  its  nature.  Ros- 
well  V.  Bateman  (N.  Mex.)  1918D-426. 

17.  Provision  not  in  terms  local. — A  munic- 
ipal ordinance  directed  against  conspiracies 
to  injure  trade,  business,  or  commerce,  and 
providing  a  penalty  for  violation  thereof,  has 
no  extramural  effect,  however  broad  its 
terms,  and  therefore  is  not  invalid  on  the 
ground  that  it  is  not  local,  special,  and  munic- 
ipal legislation.  Hall  v.  Johnson  (Ore.) 
1918E-49. 

5.   Torts. 

a.  Public  or  Governmental  Functions  or  Du- 

ties. 

18.  Under  common  law  the  municipality  is 
protected  from  liability  only  while  exercis- 
ing the  delegated  functions  of  sovereignty, 
which  include  police  regulation,  crime  pre- 
vention, preservation  of  health,  fire  preven- 
tioJi,  care  of  the  poor,  and  education  of  the 
young.  Chafor  v.  Long  Beach  (Cal. )  1918D- 
106.  (Annotated) 

19.  Maintenance  of  pesthouse. — Where  a 
municipal  corporation  maintains  a  pesthouse 
for  tie  treatment  and  isolation  of  persons 
who  have  been  exposed  to  or  affected  with 
snnllpox,  it  performs  a  governmental  duty. 
Bvtler  V.  Kansas  City  (Kan.)   1918D-801. 

(Annotated) 
20r  The  rule  that  the  governmental  agen- 
cies of  the  state  are  not  liable  in  an  action  of 
tort  for  either  misfeasance  or  nonfeasance  is 
applied  to  an  action  against  a  city  to  recover 
damages  for  personal  injuries  resulting  from 
the  defective  condition  of  the  floor  of  a  pest- 
house where  plaintiff,  who  was  affected  with 
smallpox,  was  confined  by  the  city  authori- 
ties. Butler  V.  Kansas  City  (Kan.)  1918D- 
801.  (Annotated) 

21.  Collection  of  garbage. — A  city  health 
commissioner  while  supervising  the  removal 
of  garbage,  and  a  city  commissioner  while 
authorizing  and  providing  for  its  removal, 
are  held  to  have  been  acting  in  a  public  and 
governmental,  and  not  in  a  private  or  cor- 
porate, capacitv.  Montain  v.  Fargo  (N.  D.) 
1918D-826.        *  (Annotated) 

b.  Private,  Local  or  Corporate  Functions  or 
'  Duties. 

22.  Public  assembly  hall. — A  building  con- 
structed by  the  city  under  St.  190.3,  p.  412, 


authorizing  the  city  to  incur  indebtedness 
for  a  public  assembly  hall,  is  not  one  en- 
joined upon  the  municipality  by  positive  law, 
and  the  duty  of  maintenance  is  not  there- 
fore imposed  by  law.  Chafor  v.  Long  Beach 
(0-al.)    1918D-10G.  (Annotated) 

23.  When  a  municipal  building  is  construc- 
ted and  maintained  not  for  governmental  |)ur- 
poses,  even  though  under  permission  of  stat- 
ute, and  though  maintained  for  the  benefit  of 
inhabitants  or  such  of  them  as  desired  to  use 
it,  the  city  acts  in  a  private  proprietary 
capacity,  and  is  liable  for  its  torts.  Chafor 
v.  Long  Beach  (Cal.)  1918D-106. 

(Annotated) 

24.  While  schoolhouses,  city  halls,  j^Us, 
and  fire  houses  are  governmental  instrumen 
talities  for  injuries  to  persons  in  which  the 
city  is  not  liable  the  rule  does  not  apply  to 
public  auditoriums  or  other  buildings,  though 
for  the  benefit,  convenience,  or  advantage  of 
the  people,  and  even  in  the  case  of  strictly 
governmental  buildings  if  the  city  rents  por- 
tion thereof,  it  is  liable  to  the  tenant  for 
negligent  maintenance.  Chafor  v.  Long 
Beach  (Cal.)   1918D-106.  (Annotated) 

25.  The  true  test  whether  a  municipality 
is  liable  in  tort  for  injuries  to  a  person  is  not 
whether  the  municipality  from  renting  its 
auditorium  wherein  the  injury  is  caused  is 
reaping  a  profit,  and  an  act  does  not  become 
governmental  merely  because  the  city  from 
its  performance  reaps  no  profit.  Chafor  v. 
Long  Beach    (Cal.)    1918D-106. 

(Annotated) 

26.  Where  the  city  under  St.  1903,  p.  412, 
constructs  an  auditorium  partly  over  a  bay, 
which  it  rents  to  any  persons  desiring  the 
use  of  the  same  at  fixed  rentals  for  various 
classes  of  entertainments,  and  during  a  cele- 
bration by  a  private  organization,  to  which 
all  citizens  are  invited,  the  approach  to  the 
auditorium  collapses,  with  injuries  to  per- 
sons, the  city  is  liable  to  the  same  degree 
as  if  the  building  was  owned  by  a  private 
owner.  Chafor  v.  Long  Beach  (Cal.)  1918D- 
106.  (Annotated) 

27.  Degree  of  care  required. — Where  a  nui- 
nicipal  public  assembly  hall  is  rented  to  an 
organization  Avhich  invites  all  interested  per- 
sons to  a  celebration  of  Queen  Victoria's 
birthday,  a  citizen  who  attends  is  not  a  tres- 
passer, but  a  licensee  by  permission  or  invi- 
tation, and  if  the  city  is  at  all  responsible 
for  injuries,  it  is  responsible  for  the  exer- 
cise of  ordinary  care.  Chafor  v.  Long  Beach 
(Cal.)    19181>-i06.  (Annotated) 

c.  Torts  of  Officers,  Agents  and  Employees. 

28.  Tort  of  joint  special  committee.— A 
joint  special  committee  appointed  by  a  city 
council,  consisting  of  two  members  of  the 
board  of  aldermen  and  four  members  of  the 
common  council,  to  arrange  for  a  Fourth  of 
July  celebration  and  to  have  charge  of  the 
appropriation  therefor,  had  no  authority  to 
admit  citizens  designated  by  a  board  of  trade 
to  places  on  the  committee  and  subcommit- 
tees, or  to  allow  them  to  join  in  th;  contract", 
for  a  fireworks  display,  and  no  right  under 
their  appointment  or  as  agents  of  the  city 
to  receive  and  expend  a  sum  raised  by  outside 


MUSIC— XEGLIGEXCE. 


167 


subscription,  and  such  designated  citizens 
were  not  the  agents  or  representatives  of  the 
citv  council  or  of  the  citv.  Sroka  v.  Halli- 
day   (R.  I.)   1918D-961. 

29.  The  council  committee,  together  with 
the  other  citizens  whom  they  permitted  to 
have  places  thereon,  would  be  deemed  to 
have  acted  upon  their  personal  responsibility, 
and  they  and  the  outside  members  were  sub- 
ject to  the  same  duties  and  liabilities  in 
respect  to  one  injured  by  fireworks  used  in 
the  celebration,  especially  in  view  of  their 
joinder  in  a  special  plea  placing  themselves 
before  the  court  in  the  same  attitude.  Sroka 
V.  Halliday    (R.   I.)    1918I>-!)61. 

(Annotated) 

d.  Notice   of   Claim. 

30.  Statement  of  time  of  accident. — Un- 
der Laws  1886,  c.  572.  requiring,  as  a  con- 
dition precedent  to  suit,  notice  of  intention 
to  sue  a  city  for  personal  injuries  and  of  the 
'•time  and  place  at  which  the  injuries  were 
received"  to  be  filed  within  six  months  after 
the  accident,  notice  of  injuries  from  defective 
sidewalk,  stating  the  time  of  the  accident 
as  August  20th,  it  in  fact  having  occurred 
August  20th.  is  insufficient.  Weisman  v, 
Xew  York    (X.   Y.)    1918E-1023. 

(Annotated) 

31.  A'V'Tiere  the  notice  of  personal  injuries 
from  defective  sidewalk  addressed  to  a  city 
stated  the  time  of  the  accident  as  August 
20th,  it  having  occurred  August  28th,  its 
insufficiency  cannot  be  disregarded  as  not 
prejudicial  to  the  citj'^  because  plaintiff,  on 
examination  by  the  corporation's  counsel 
before  the  trial,  stated  the  accident  occurred 
August  28th,  where  she  subsequently  served 
her  complaint,  alleging  the  original  incorrect 
date  of  August  20th,  since  by  her  last  and 
controlling  words  she  authorized  defendant 
city  to  believe  that  after  all  the  correct 
date  was  August  20th,  and  that  that  would 
be  he  one  it  would  be  compelled  to  meet  on 
the  trial.  Weisman  v.  New  York  (N.  Y.) 
1918E-1023.  •  (Annotated) 

32.  The  insufficiency  of  a  notice  to  a  city 
of  injury  from  defective  sidewalk,  because  of 
erroneous  statement  of  date  of  accident,  is 
not  waived  by  the  injured  person's  being 
examined  before  trial  ^by  the  corporation's 
counsel,  at  which  hearing  she  stated  the 
correct  date.  Weisman  v.  New  York  (N. 
Y.)    1918E-1023.  (Annotated) 

6.  Action  against  Municipalities. 

33.  Waiver  of  misnomer. — Where  a  munic- 
ipality was  incorporated  under  the  name  and 
style  of  the  "mayor  and  council  of  the  town 
of  Arlington,"  with  tlie  power  to  sue  and  be 
sued  in  that  name,  and  to  a  suit  against  the 
'"town  of  Arlington"  it  appeared  and  pleaded 
to  the  merits  in  its  true  name  witiiout  rais- 
ing the  objection  of  misnomer,  and  subse- 
quently the  petition  was  so  amended  as  to 
designate  the  defendant  as  the  "mayor  and 
council  of  the  town  of  Arlington,"  the  error 
as  to  the  name  was  waived  by  it.  Commis- 
sioners of  Mcintosh  Countv  v.  Aiken,  123 
Cia.  647  (51  S.  E.  585).    See'Rhodes  v.  Louis- 


ville, 121  Ga.  551  (49  S.  E.  681).  Such  waiver 
was  binding  upon  citizens  and  taxpayers  who 
intervened  and  contested  the  right  to  vali- 
date bonds  of  the  municipality  (which  was 
the  object  of  the  suit) ;  and  it  was  proper 
to  overrule  a  demurrer  by  the  interveners  on 
the  ground  that  the  suit  was  not  brought 
against  the  municipality  in  its  corporate 
name  and  was  a  mere  nullitv.  Saunders  v. 
Arlington    (Ga.)    1918D-907. 

34,  The  evidence  was  sufficient  to  support 
the  judgment  validating  the  bonds,  and  none 
of  the  assignments  of  error  are  sufficient  to 
require  a  reversal.  Saunders  v.  Arlington 
(Ga.)   1918D-907. 


MUSIC. 

Power    of    school   board   to    provide   for    in- 
struction of  music,  see  Schools,  2-4. 


NAMES. 

See  cross  references  given  under  Misnomer. 

NATIONAL  BANKS. 

See  Banks  and  Banking. 

NATURALIZATION. 

See  Aliens,  7. 

NAVY. 

See  Army  and  Navt. 


NEGLIGENCE. 

Contributory  negligence  of  guest  in  auto- 
mobile, see  Automobiles,  22,  23. 

Contributory  negligence  of  person  struck  by 
automobile  after  alighting  from  street 
car,  see  Automobiles,  3,  4. 

Imputation  of  negligence  to  person  riding  in 
automobile,  see  Automobiles,  24. 

Indemnity  contract  as  including  liability  for 
negligence,  see  Indemnity,  1. 

Injuries  to  tenant's  wife  by  reason  of  negli- 
gence in  care  of  premises,  see  Landlobd 
AND  Tenant,  9,  10. 

Liability  for  accidental  shooting  by  sports- 
man, see  Weapons,  1-5. 

Liability  for  injuries  arising  from  defects  in 
streets,  see  Stkeets  and  Highways, 
11-15. 

Liability  for  negligence  in  use  of  streets, 
see'vSTBEETS  and  Highways,  9,  10. 

Liability  for  negligence  in  use  of  X-rays,  see 
Physicians  and  Sxtrgeons,  13-15, 

Liability  of  dentist  for  negligence,  see 
Physicians  and  Sltigeons,  11,  12. 

Liability  of  employer  for  negligence  of  inde- 
pendent contractor,  see  Independent 
Contractors.  0-13. 


168 


ANN.  CAS.  DIGEST  (1918C-1918E). 


Liability  of  municipal  corporation,  see  Mu- 
nicipal COSPORATIONS,   18-32. 

Liability  of  state  for  negligence  of  servants, 
see  States,  5-8. 

Liability  of  water  company  for  injuries  from 
typhoid  germs  in  water  supply,  see 
Watebwobks  akd  Water  Companies, 
4-11. 

Necessity  of  proof  of  negligence  in  action  for 
injury  resulting  from  nuisance,  see  Nui- 
sances, 1. 

Of  street  car  conductor  as  cause  of  collision 
with  railroad  train,  see  Street  Baii.- 
"WAYS,  6. 

1.  Invitee. — ^An  invitee  in  a  store  is  not 
to  be  too  circumscribed  as  to  his  movements 
while  waiting  for  a  clerk  to  exhibit  goods, 
but  he  has  a  right  to  inspect  goods  and  fre- 
quent places  used  by  other  patrons  of  the 
store,  and  provided  for  their  use  by  the 
storekeeper.  Kress  v.  Markline  (Miss.) 
1918E-310.  (Annotated) 

2.  Prositnate  Cause. — To  warrant  a  recov- 
ery for  negligence,  it  is  incumbent  on  the 
plaintiff  to  allege  and  show  that  the  defend- 
ant was  guilty  of  some  negligent  act  which 
was  the  proximate  cause  of  the  injury,  since 
the  law  looks  to  the  immediate,  not  to  the 
remote,  cause  of  damage.  Chancey  v.  Nor- 
folk, etc.  R.  Co.   (N.  C.)  1918E-580. 

3.  Where  damage  resulting  from  another's 
act  does  not  flow  naturally,  legally,  and  with 
sufficient  directness  from  such  other's  negli- 
gence, plaintiff  is  not  entitled  to  recover. 
Chancey  v.  Norfolk,  etc.  R.  Co.  (N.  C.) 
1918E-580. 

4.  Contributory  negligence. — To  defeat  a 
recovery  because  of  the  contributory  negli- 
gence of  the  plaintiff,  such  negligence  must 
contribute  proximately  as  a  cause  of  the  in- 
jury but  it  need  not  be  itself  the  proximate 
cause  of  it.  Blume  v.  Chicago,  etc.  (Minn.) 
1918D-297. 

5.  Failure  to  reply. — ^Where  the  aflirmative 
plea  of  plaintiff's  contributory  negligence  in 
the  answer  is  uncontroverted,  though  evi- 
dence on  the  issue  of  contributory  negligence 
la  received,  and  a  verdict  rendered  for  plain- 
tiff, the  omission  is  not  cured.  Lancaster 
Electric  Light  Co.  v.  Taylor  (Ky.)  19180 
59L 

6.  Burden  of  proof. — The  law  imposes  on 
plaintiff  suing  for  injuries  caused  by  negli- 
gence the  burden  of  showing  by  a  preponder- 
ance of  the  evidence  that  the  negligence  was 
the  cause  of  his  injury,  and  that  defendant 
was  responsible  for  the  negligence.  Memphis 
St.  R.  Co.  v.  Cavell  (Tenn.)   1918C-42. 

7.  In  general,  mere  proof  that  an  acci- 
dent injurious  to  plaintiff  has  occurred  does 
not  justify  a  verdict  or  judgment  imposing 
liabiiity  therefor  upon  the  defendant.  Mem- 
phis St.  R  Co.  v.  Cavell  (Tenn.)  19180-42. 

8.  Condition  of  other  similar  property  of 
defendant. — In  an  action  for  damages  for 
death  of  plaintiff's  intestate,  caused  by  sink- 
ing of  boat,  hired  of  defendant,  in  which  he 
and  his  companions  had  gone  rowing,  evi- 
dence as  to  condition  of  other  boats  kept 
for  hire  by  defendant  is  inadmissible,  where 
it  tends  to  prove  that  they  were  in  various 


conditions  as  to  repair,  and  little  of  it  tended 
to  prove  boats  were  unseaworthy.  Clark  v. 
Detroit,  etc.  R.  Co.  (Mich.)  1918E-1068. 

9.  Question  for  jury. — ^Where  the  facts  are 
such  that  reasonable  men  may  differ  whether 
tliere  was  negligence,  they  should  be  sub- 
mitted to  the  jury.  Gibson  v.  Payne  (Ore.) 
1918C-383. 

10.  The  questions  of  contributory  negli- 
gence and  proximate  cause  are  questions  of 
fact  for  the  juiy,  and  the  verdict  of  a  jury 
determining  such  facts  adversely  to  the  de- 
fendant will  not  be  set  aside,  imless  the  evi- 
dence is  such  that  in  the  mind  of  the  court 
reasonable  men  would  necessarily  arrive  at 
a  different  conclusion,  and  there  is  no  reason- 
able basis  for  them  to  differ  in  this  conclu- 
sion. Chambers  v.  Minneapolis,  etc.  R.  Co. 
(N.  D.)  1918C-954. 


NEGOTIABLE  INSTRUMENTS. 

See  Bills  and  Notes. 

Nature  of  certificate  of  corporate  stock, 

COBPOBATIOKS,    35. 


NEGRO. 

Reference  by  prosecuting  attorney  to  race  of 

accused,  see  Abgument  and  Conduct  of 

Counsel,  2. 
Statute  penalizing  denial  of  accommodation 

in  public  places  on  account  of  race,  see 

Civil  Rights,  1,  2. 


NEWLY  DISCOVERED  EVIDENCE. 

As  ground  for  new  trial,  see  New  Trial,  1-4. 

NEWSPAPERS. 

Libelous  statements,  see  Libel  and  Slander. 

NE^V  TRIAL. 

Excessiveness    of    damages    as    groimd,    see 

Damages,  6. 
New  trial  in  disbarment  proceeding,  see  At- 

TOBNEJYS,   21. 

1.  Newly  discovered  evidence. — On  the 
facts  stated  in  the  opinion  it  is  held  that 
it  was  error  not  to  grant  a  new  trial  on  the 
ground  of  newly  discovered  evidence.  Henry 
V.  Missouri,  etc.  K  Co.    (Kan.)    1918E-1094. 

2.  Diligence. — The  accused  is  not  entitled 
to  a  new  trial  on  the  ground  of  newly  dis- 
covered evidence  tending  to  support  his  claim 
of  alibi,  where  some  of  the  evidence  must 
have  been  within  the  knowledge  of  the  ac- 
cused, and  the  other  could  have  been  discov- 
ered by  diligence  during  the  five  years  pre- 
ceding trial.  McCue  v.  State  (Tex.)  19180- 
674. 

3.  Cumulative  evidence. — Where  several 
persons  besides  members  of  accused's  own 
family  testified  in  support  of  his  defense  of 


:n^olle  prosequi— options. 


169 


alibi,  newly  discovered  testimony  of  other 
<nitside  witnesses  tending  to  support  the  de- 
fense is  cumulative,  and  affords  no  ground 
for  new  trial.  McCue  v.  State  (Tes.)  1918C- 
•674. 

4.  Where  there  have  been  several  trials 
and  continuances,  a  new  trial  will  not  be 
granted  on  the  ground  of  newly  discovered 
testimony  which  is  only  cumulative.  McCu© 
V.  State    (Tex.)    19180-674. 


irUISANCES. 

Right  of  city  to  remove  spur  tracks  of  street 
railway  as  nuisance,  see  Steeet  Rail- 
ways, 5. 

1.  Necessity  for  proof  of  negligence. — In  an 

action  for  injury  resulting  from  a  nuisance 
per  se.  no  negligence  need  be  proved.  Sroka 
V.  Hahiday   (R.  I.)    1918D-961. 


NOIXE  PROSEQUI. 

Effect  of  entry  of  nolle  prosequi  as  to  part 
of  counts  of  indictment,  see  Appeax. 
AND  Error,  101. 

Time  for,  see  Former  Jeopardy,  3. 


NON  EST  FACTUM. 

Plea  in  action  against  sureties,  see  Stjbety- 
SHiP,  4-7. 


NONSUIT. 

See  Dismissal  and  Nonsuit. 

NONSUPPORT. 

Prosecution  for  nonsupport  of  child,  see  Par- 
ent AND  Child,  4,  5. 

NOTES. 

See  Bills  awd  Notes. 


NOTICE. 

See  Judioiai,  Notice. 

Defects  in  notice  of  appeal,  see  Appeal  and 
Error,  14. 

Duty  of  garnishee  to  notify  principal  defend- 
ant of  garnishment  proceedings,  see 
Garnishment,  1,  2. 

Notice  to  agent  as  notice  to  principal,  see 
Agency,  16. 

Notice  to  owner  of  negligent  operation  of 
elevator,  see  Elevators,  1. 

Of  circumstances  making  carrier  liable  in 
special  damages  for  delay  in  transporta- 
tion of  goods,  see  Carriers  of  Goods, 
20-25. 

Of  claim  for  personal  injuries  against  city, 
see  Municipal  Corporations,  30-32. 

Of  claim  requisite  to  mechanic's  lien,  see  Me- 
PHANics'  Liens,  10-13. 

Requirement  of  notice  of  claim  against  car- 
rier of  goods,  see  Carriers  of  Goods, 
6-8. 

Waiver  of  notice  of  claim  against  carriers 
of  live  stock,  see  Carriers  of  Live 
Stock,  3. 


NUNC    PRO    TUNC. 

Entry  on  record  of  trj^verse  of  allegation  in 
answer,  see  Pleading,  21. 


NURSES. 

Administration  of  anesthetic  by  nurse  as 
practice  of  medicine,  see  Physicians 
AND  Surgeons.  5. 


OBJECTIONS  AND  EXCEPTIONS. 

Necessity  to   raise   question  on  appeal,   see 
Appeal  and  Error,  89-93. 


OCCUPANCY. 

By  grantor  as  affecting  right  of  grantee  to 
possession,  see  Adverse   Possession,   1. 


OCCUPATION  TAX. 

See  Lice:nses. 

OFFSET. 

See  Set-Off  and  Counterclaim. 

Offsetting    enhancement    in    value    of    other 

property    in    condemnation    proceedings, 

see  Eminent  Domain,  14. 


OPEN  AND  CLOSE. 

Right  to  open  and  close,  see  Argument  and 
Conduct  of  Counsex,  1. 


OPINION   EVIDENCE. 

See  Evidence,  12-16. 

OFFICERS. 

See  Public  Officers. 

OPTIONS. 

Construction  of  option  timber  contract,  see 
Tree^s  and  Timber,  1,  2. 


170 


AN:N".  CAS.  DIGEST  (1918C-1918E). 


Evidence  as  to  circumstances  surrounding 
making  of  option  agreement,  see  Evi- 
dence, 32. 

For  purchase  of  land,  see  Vendor  and  Pub- 
CHASEB,  1-3,  8-12. 

Option  contract  as  entitled  to  record,  see 
Recobding  Acts,  1. 

Proceeding  to  forfeit  rights  under  deed  exe- 
cuted pursuant  to  timber  option,  see 
Deeds,  15,  16. 


ORDER  OF  PROOF. 

See  Tbial,  2,  3. 


ORDERS. 

See  Judgments. 

Order  for  payment  of  money  due  on  working 

contract    as    equitable    assignment,    see 

Assignments,  4. 


ORDINANCES. 

Initiated    ordinances,    see    iNiriATrvE    and 
Eefebendxjm,  1,  2. 


OSTEOPATHY. 

Title  and  subject-matter  of  act  relating  to 
osteopathy,  see  Statutes,  3. 

Validity  and  construction  of  statute  regu- 
lating practice  of  osteopathy,  see  Physi- 
cians AND   SUBGEONS,   1-4,   6-8. 


PARENT  AND  CHILD. 

See  Infants. 

Action    for    death    of    child,    see   Death    by 

Wbongful  Act,  5-7,  19". 
Advancements    to    children,    see    ADVANCat- 

MENTS,   1-3. 
Custody  and  support  of  children  on  divorce 

of  parents,  see  Divorce,  11-16. 
Estoppel   to  deny  legitimacy  of  children  by 

inconsistent   position    in    litigation,    see 

Estoppel,  2. 
Liability  of  father  for  negligence  of  son  while 

driving    automobile,    see    Automobiles, 

12,  13. 
Recovery    by    widow    as    barring    rights    of 

posthumous   child  to  recover  for  death 

of    father,    see    Death    by    Wbongful 

Act,  8,  9. 
Eight  of  child  to  recover  for  death  of  father, 

see  Death  by  Wbongful  Act,  18. 
Settlement  of  bastardy  proceeding  as  bar  to 

action  by  father  to  recover  damages  for 

seduction,  see  Seduction,  5. 
Suit  by  divorced  wife  for  death  of  child,  see 

Death  by  Wbongful  Act,  5. 

1.  Liability  for  tort  of  child. — ^A  father  is 
not  liable  for  the  torts  of  his  minor  or  adult 
children  simplv  because  of  the  relationship. 
Hays  V.  Hogan  (Mo.)  1918E-1127. 


2.  Recovery  by  father  for  loss  of  service*. 
— A  father  may  maintain  an  action,  under 
the  provisions  of  section  4992,  Gen.  Stat. 
1909,  to  recover  for  the  loss  of  services  re- 
sulting from  injuries  received  by  his  minor 
son  by  reason  of  the  failure  of  defendant  to 
comply  with  the  statute  which  provdes  for 
the  safety  of  persons  employed  in  coal  mines. 
(Gen.  Stat.  1909,  §  4987.)  Henry  v.  Missouri, 
etc.  R.  Co.   (Kan.)   1918E-1094. 

3.  Services  rendered  to  parent. — Where  a 
married  daughter  and  her  family,  or  husband, 
live  at  the  house  and  at  the  expense  of  her 
mother,  who,  being  made  defendant  in  a  suit 
brought  by  her  other  children  for  her  inter- 
diction, is  provided,  at  her  own  expense,  with 
such  medical  attention,  nurses,  and  servants 
as  she  needs,  and  no  question  of  paying  her 
daughter  for  her  care  and  attention  is  sug- 
gested, a  claim  therefor  against  the  succes- 
sion of  the  mother  is  properly  rejected,  the 
more  especially  where  it  appears  that  the 
daughter  is  one  of  two  heirs  who  receive  un- 
der the  will  of  the  mother  one-third  of  a  con- 
siderable estate  over  and  above  the  legitime 
to  which  the  law  entitles  them.  Pons's  Suc- 
cession   (La.)    1918D-939. 

4.  Nonsupport  of  child. — ^In  a  prosecution 
under  the  statute  mailing  it  a  criminal  of- 
fense for  a  parent  to  neglect  or  refuse,  with- 
out lawful  excuse,  to  provide  for  the  support 
of  his  children  in  destitute  or  necessitous  cir- 
cumstances, it  is  not  a  defense  for  a  father 
upon  whom  rested  the  duty  of  providing  such 
support  to  show  that  the  necessities  of  the 
children  were  relieved  by  the  interposition  of 
others.  State  v.  Wellman  (Kan.)  1918D- 
1006. 

5.  Conviction  of  nonresident  parent. — A 
person  who  has  never  been  in  this  state  may, 
under  some  circumstances,  be  rightfully  con- 
victed here  of  a  violation  of  the  statute  mak- 
ing it  a  felony  for  a  parent,  without  lawful 
excuse,  to  neglect  or  refuse  to  provide  for  the 
support  of  his  children  under  the  age  of  six- 
teen years  who  are  in  destitute  circumstances. 
State  V.  Wellman  (Kan.)  1918D-1006. 


PARI    MATERIA. 

Construction  of  statutes  in  pari  materia,  see 
Statutes,  16. 


PARKS   AND   PUBLIC    SQUARES. 

1.  Diversion  to  improper  use. — Where  the 
owner  conveyed  to  a  city  land  to  be  used  as 
a  public  park  only  and  to  be  improved  and 
properly  cared  for  as  such  with  a  dedication 
to  the  public  forever,  an  abutting  property 
owner  can  maintain  a  suit  in  equity  to  ])re- 
vent  a  use  of  the  park  foreign  to  )iark  ))ur- 
poses.  Dodge  v.  North  End  Imp.  Assoc. 
(Mich.)  1918E-485. 

2.  Erection  of  building  in  park. — Where  a 
pavilion  was  erected  in  a  public  park  to  serve 
the  double  purpose  of  a  waiting  room  for 
street  cars  and  refreshment  and  shelter  room 
for  the  public  using  the  park,  and  the  build- 


PAROL  CO:XTKACTS— PARTXERSHIP. 


171 


ing  was  located  at  proper  and  convenient 
place  for  both  purposes,  such  building  and  use 
were  not  foreign  to  ''public  park"  purposes. 
Dodge  V.  North  End  Imp.  Assoc.  (Mich.) 
1918E-485.  (Annotated) 


PAKOIi   CONTRACTS. 

See  CoNTBACTS;  Feauds,  Statute  of;  Sales. 

PAROL  EVIDENCE. 

See  Evidence,  28-35. 

PAROL  TRUST. 

See  Trusts  axd  Tbustees,  1-13. 

PARTLAL    INVALIDITY. 

Of  contract,  see  Contbacts,  13. 

PARTIES  TO  ACTIONS. 

See  Injunctions,  14,  15;  Quo  Warbanto, 
2-4;  Rescission,  Cancellation  and 
Reformation,  11. 

In  suit  to  cancel  deed  from  state,  see  Pub- 
lic Lands,  15-19a. 

Necessary  parties  to  action  for  foreclosure 
of  mortgage,  see  Mortgages,  10. 

Nonresidence  of  parties  defendant  as  aflfect- 
ing  right  to  amend  petition,  see  Plead- 
ing, 19. 

Substitution  of  parties  in  action  by  foreign 
corporation  as  trustee  to  foreclose  deed 
of  trust,  see  Corporations,  50. 

Validity  of  judgment  against  partners  in 
action  against  firm,  see  Pabtnebship,  5. 

Weight  of  testimony  of  partv,  see  Tbial, 
8,  9. 

1.  Virtual  representation. — That  one  is  not 
named  as  a  party  to  a  suit  in  e«iuity  does  not 
necessarily  prevent  his  being  concluded  by 
the  decree,  since  his  interest  may  be  repre- 
sented by  others  who  are  formal  parties.  Mc- 
Clelland V.   Rose    (U.  S.)    1918C-341. 

(Annotated) 

2.  Where  members  of  a  class  are  joined  as 
n>i)resentatives  of  the  class,  such  fact  should 
appear  from  the  record  as  well  as  the  reason 
why  the  others  are  not  brought  in  and  the 
relation  of  those  sued  to  the  subject-matter 
of  the  suit,  so  as  to  present  to  the  court  for 
determination  the  question  whether  or  not 
thev  properly  represent  others  not  before  the 
court.    McClelland  v.  Rose  (U.  S.)  1918C-341. 

(Annotated) 

PARTNERSHIP. 

Appearance  bj-  partner,  see  Appearance,  1. 


Death  of  partner  as  affecting  appeal  in  suit 
against  partnership,  see  Appeal  and  Eb- 
ROR,  11. 

Dissolution  by  war,  see  Aliens,  3. 

1.  Nature. — A  partnership  is  a  distinct  en- 
tity from  the  individuals  who  compose  it. 
Holmes  v.  Alexander    (Okla.)    1918D-1134. 

2.  Nature  of  title  to  realty. — A  deed  to  a 
partnership,  as  such,  vests  the  full  equitable 
title  to  the  land  in  the  members  of  the  part- 
nership as  tenants  in  common.  Robinson  v. 
Daughtry    (N.  C.)    1918E-1186. 

3.  Power  of  partner  to  convey  firm  realty. 
—While  each  partner  is  the  agent  of  all  the 
others  and  may  bind  himself  and  the  other 
partners,  such  agency  does  not  ordinarily 
permit  one  partner  to  convey  partnership 
realty.  Robinson  v.  Daughtry  (N.  C.)  1918E- 
1186.  (Annotated) 

4.  Deed  by  partner  as  contract. — Where  a 
partnership  was  engaged  in  disposing  of 
rights  to  sell  an  article,  receiving  land  and 
other  property  in  payment  and  converting  it 
into  money,  a  deed  by  a  partner  having  charge 
of  a  territory  and  authorized  to  dispose  of 
land  received  by  him,  while  not  effective  to 
pass  title,  is  valid  as  a  contract  to  convey. 
Robinson  v.  Daughtry   (N.  C.)   1918E-1186. 

5.  Parties  to  judgment. — In  an  action 
against  a  partnership,  where  service  is  made 
upon  the  firm  only,  a  judgment  rendered 
against  the  individuals  composing  the  part- 
nership is  void  for  the  reason  that  it  is  ren- 
dered against  parties  not  before  the  court. 
Holmes  v.  Alexander   (Okla.)   1918D-1134. 

(Annotated) 

6.  Right  to  accounting. — When  a  partner- 
ship business  is  closed  out,  a  cause  of  action 
for  an  accounting  and  settlement  arises  be- 
tween the  partners,  under  an  implied  contract 
mutually  and  equally  to  share  the  profits  and 
bear  the  burdens  of  the  partnership  Brooks 
V.  Campbell   (Kan.)   1918D-1105. 

7.  Limitations  against  action  for  account- 
ing.— A  partnership  business  was  closed  out 
in  April,  1908.  An  action  for  an  accounting 
and  settlement  and  for  moneys  due  to  one 
partner  from  the  other  partners  was  not  be- 
gun until  September,  1913.  Held  that  such 
action  was  barred  by  the  statute  of  limita- 
tions. (Civ.  Code,  §  17,  subd.  2.)  Brooks  v. 
Campbell  (Kan.)   1918D-1105.       (Annotated) 

8.  A  partnership  of  three  members  estab- 
lished a  business  at  Ardmore,  Okla.  The 
business  was  a  failure,  and  was  closed  out  by 
the  plaintiff  as  manager  with  the  consent  of 
the  other  partners.  Two  years  and  three 
months  later  plaintiff  collected  a  claim 
against  a  railway  company  for  loss  of  goods 
shipped  by  him  to  the  other  partners  upon 
closing  out  the  partnership  business.  Plain- 
tiff voluntarily  placed  the  sum  collected  to 
the  credit  of  the  defunct  partnership.  Held 
that  such  voluntary  payment  did  not  inter- 
rupt the  running  of  the  statute  of  limitations 
in  plaintiff's  own  favor.  Brooks  v.  Campbell 
(Kan.)  1918D-1105.  (Annotated) 


172  ANX.  CAS.  DIGEST  (1918C-1918E). 

PARTY  WALLS.  PENALTIES. 

See  Adjoining  Landownebs,  1-3. 


PASSENGERS. 


Provision  for  penalty  in  charter  party  as 
limiting  recovery  in  case  of  entire  re- 
pudiation of  charter,  see  Ships  and 
Shipping,  3,  4. 


See  Cabbiebs  of  Passengebs. 


PATENTS. 

Control  of  price  of  patented  article  on  re- 
sale as  monopoly,  see  Monopolies,  3. 

Jurisdiction  to  determine  rights  under  patent 
law,  see  Coubts,  2. 

Patent  of  title  to  public  lands,  see  Public 
Lands,  1,  2. 


PATIENT. 


Who    is    "patient,' 

UOBS,  5. 


see   Intoxicating   Liq- 


PAYMENT. 

Assignment  of  progress  payment  on  public 
improvement  contract,  see  Assignments, 
30. 

Extension  of  time  as  discharge  of  accommo- 
dation maker,  see  Bills  and  Notes,  1,  2. 

Extension  of  time  for  payment  as  considera- 
tion for  contract  of  suretyship,  2,  3. 

Necessity  of  return  of  part  payment  received 
under  insurance  policy  in  suit  on  policy, 
see  Release  and  Dischagbe,  10. 

Of  bequests,  see  Wills,  52,  53. 

Of  premiums  on  life  insurance,  see  Life  In- 
subance,  1-3. 

Part  satisfaction  by  one  of  several  tort- 
feasors as  inuring  to  beneht  of  all,  see 
Release  and  Dischabge,  7. 

Bight  of  seller  of  land  under  verbal  contract 
to  retain  part  payment  on  repudiation  of 
contract,  see  Fbauds,  Statute  of,  4. 

1.  Check  as  payment. — ^\Vhere  a  tenant 
mails  a  checic  for  the  amount  of  rent  then 
due,  containing  a  notation  "Lot  C,"  when  that 
covered  by  the  lease  was  "Lot  A."  not  owned 
by  th«  landlord,  the  latter  must  have  known 
that  the  check  was  intended  as  payment  for 
"Lot  A."  Moore  v.  Twin  City  Ice,  etc.  Stor- 
age Co.   (Wash.)    1918D-540. 

2.  Waiver  of  objection. — Where  tender  of 
rent  in  the  form  of  a  check  was  not  refused 
because  it  was  not  made  in  cash,  the  landlord, 
in  his  action  for  a  forfeiture,  cannot  claim 
that  the  tender  should  have  been  made  in 
money  and  not  by  check.  Moore  v.  Twin 
City  Ice,  etc.  Storage  Co.  (Wash.)  1918D-540. 


PEDDLERS. 

See  Hawkebs  and  Peddlebs. 


PENSIONS. 

1.  Validity  of  statutes. — Pension  acts  to  be 
valid  can  only  confer  pensions  upon  persona 
who  at  the  time  of  receiving  them  are  officers 
or  employees  ot  the  municipality.  People  v. 
Abbott    ('ill.)    1918D-450. 

2.  Act  pensioning  police  officers. — Police 
Pension  Fund  Act  (Laws  1909,  p.  133),  as 
amended  l)y  Laws  1913,  p.  174,  provides  in 
section  1  that  there  shall  be  set  apart  certain 
moneys  to  constitute  a  police  pension  fund. 
Section  3  declares  that  whenever  any  person 
who  at  the  time  of  the  taking  effect  of  the 
act  is  a  member  of  the  police  force  or  who 
shall  thereafter  become  a  member  of  such 
force  shall  have  served  for  twenty  years,  he 
shall,  aftes  having  reached  the  age  of  fifty, 
receive  a  yearly  pension  after  retirement. 
Section  4  provides  for  the  payment  of  a  pen- 
sion to  any  policeman  who  has  become  physi- 
cally disabled  while  in,  and  in  consequence 
of,  the  performance  of  his  duty.  Sections  6 
and  13  make  other  provisions  with  relation 
to  the  pensions.  Const,  art.  4,  §§  19,  20,  for- 
bid the  general  assembly  from  authorizing 
extra  compensation  to  a  public  officer  after 
service  has  been  rendered  or  contract  made, 
and  prohibit  the  state  from  becoming  re- 
sponsible for  the  debts  of  or  in  any  manner 
extending  credit  to  any  individual,  while 
article  9,  §§  10,  11,  declare  that  taxes  levied 
by  the  general  assembly  upon  municipal  cor- 
porations must  be  uniform  and  that  the  fees 
and  compensation  of  no  officer  shall  be  in- 
creased or  diminished  during  Iiis  term.  It 
is  held  that,  as  pensions  to  municipa,l  officers 
are  sustained  on  the  gi-ound  of  being  com- 
pensation for  services  for  which  adequate 
compensation  has  not  already  been  made  and 
are  intended  to  promote  fidelity  of  service, 
the  pension  act  is  not  in  violation  of  sucli 
constitutional  provisions.  People  v.  Abbott 
(111.)  1918D-450.  (Annotated) 

3.  In  such  case,  as  it  appears  that  only  a 
small  percentage  of  the  police  pension  fund 
will  be  derived  from  the  salaries  of  such  of- 
ficers, and  as_  section  4  provides  for  the  pay- 
ment of  a  pension  at  any  time  to  a  policeman 
physically  disabled  in  the  performance  of  his 
duty,  the  act  must  be  deemed  applicable  to 
police  officers  in  active  sers'ice  who  had  served 
a  period  of  twenty  years  and  were  over  the 
age  of  fifty  when  it  went  into  force,  though 
of  course  the  act  is  not  applicable  to  those 
who  had  previously  retired  from  such  service. 
People  V.  Abbott  (IH)  1918r)-450. 

4.  Police  Pension  Act,  as  amended  in  1913. 
section  1,  providing  that  there  shall  be  set 
apart  moneys  to  donstitute  the  police  pension 
fund,  is  mandatory;  the  ordinary  meaning  of 
the  word  "shall'  being  mandatory.  People  v, 
Abbott   (111.)    1918D-450. 


PERCOLATING  ^YATERS— PHYSICIANS  AND  SURGEONS.   173 


PERCOLATING  WATEHS. 

XJee  of,  see  Watebs  a>'d  Watebooueses,  1-3. 

PEREMPTORY  INSTRUCTIONS. 

See  Vebdict,  10,  11. 

PERMANENT   DISABILITY. 

Under  insurance  policy,  see  Accident  Insub- 

ANCE,  1,  4. 
Under    Workmen's    Compensation    Act,    see 

Masteb  and  Servant,  11,  12. 

PERMISSIVE  OCCUPANCY. 

By  grantor  as  affecting  right  of  grantee  to 
possession,  see  Adyeese  Possession,  1, 

PERPETIHTIES. 

1.  Trust  to  pay  income  for  one  life  and 
twenty-one  years. — A  trust,  whereby  income 
was  left  to  the  testator's  son  for  life  with 
directions  that  upon  the  death  of  his  son  the 
income  should  he  equally  divided  among  his 
surviving  children  or  the  issue  then  living  of 
deceased  children,  until  the  first  child 
should  reach  the  age  of  forty,  and  in  any 
event  not  before  twenty-one  years  after  the 
son's  death,  when  the  principal  should  be 
divided,  is  not  bad  as  a  perpetuity.  Boston 
Safe  Deposit,  etc.  Co.  v.  Collier  (Mass.) 
1918C-962. 

PERSONAL  INJURIES. 

See  Carbiebs  of  Passengers:  Damages; 
Explosions  and  Explosin'es;  Land- 
lord and  Tenant;  Railroads;  Street 
Eailroads;   Street  and  Highways. 

PEST   HOUSE. 

Maintenance  of  pest  house  a*  governmental 
function,  see  Municipal  Cobpobations, 
19,  20. 

PHOTOGRAPHS. 

As  evidence,  see  Evidence,  24-27. 

PHYSICIANS  AND  SURGEONS. 

1.  Validity  of  Statutes,  173. 

2.  Construction  of  Statutes,  173. 

3.  Prosecutions  for  Violation  of  Statutes,  173. 

4.  Compensation,  174. 

5.  Liability  for  Malpractice,  175.     ' 


Admissibility  of  physician's  death  certificate, 
see  Evidence,  22. 

Duty  of  employer  maintaining  relief  depart- 
ment to  furnish  medical  aid,  see  Master 
AND  Seevant,  28-34. 

Employment  of  unlicensed  assistant  dentist 
as  defense  to  action  on  indemnity  policy, 
see  Insl'BANce,  26-29. 

furnishing  prescription  for  intoxicating  liq- 
uors, see  Intoxicating  Liquobs,  4-7, 
14. 

Indemnity  against  liability  for  malpractice 
in  practice  of  dentistrv,  see  Insubance, 
23-29. 

Privileged  communications  between  physi- 
cian and  patient,  see  Witnesses,  6. 

Title  and  subject-matter  of  act  relating  to 
osteopathy,  see  Statutes,  3. 

1.  Validity  of  Statutes. 

1.  Practice  of  osteopathy. — ^Rev.  Codes,  § 
loJtC,  making  it  unlawful  to  practice  osteo- 
pathy without  a  license  from  board  of  exam- 
iners, does  not  make  an  arbitrary  classifica- 
tion denying  the  right  of  citizens  to  engage 
in  a  lawful  occupation,  and  so  constitute  an 
abuse  of  the  police  power.  State  v.  Hopkins 
(Mont.)  1918D-956.  (Annotated) 

2.  Inclusion  of  chiropractic  in  osteopathy. — 
Eev.  Codes,  §  1605,  including  in  its  definition 
of  the  practice  of  osteopathy,  all  treatment 
by  use  of  the  hands  or  mechanical  appliances, 
and  so  including  the  practice  of  chiropractic 
for  the  purpose  of  requiring  qualifications  and 
a  license  to  practice,  is  not  an  attempt  to 
confer  a  monopoly  on  the  school  of  oste- 
opathy. State  v.  Hopkins  (Mont.)  1918I>- 
956.  (Annotated) 

3.  To  require  a  chiropractor,  whose  treat- 
ment is  confined  principally  to  the  spine,  to 
take  an  examination  on  anatomy  and  the 
other  branches  of  science  prescribed  by  Rev. 
Codes,  §  1598,  for  examination  of  osteopaths 
generally,  as  does  section  1605,  by  defining 
the  practice  of  osteopathy  so  as  to  include  the 
practice  of  chiropractic,  cannot  be  said  to 
have  no  proper  relation  to  such  practice. 
State  V.  Hopkins   (Mont.)   1918D-956. 

(Annotated) 

2.  Construction  of  Statutes. 

4.  Right  of  physician  to  practice  oste- 
opathy.— The  proviso  to  Rev.  Codes,  §  1605, 
defining  the  practice  of  osteopathy,  that  noth- 
ing in  the  section  shall  be  construed  to  re- 
strain a  legally  licensed  physician  or  surgeon 
in  the  practice  of  his  profession,  does  not  per- 
mit a  practitioner  of  medicine  or  surgery  to 
practice  osteopathy.  State  v.  Hopkins 
(Mont.)  1918D-956. 

3.  Prosecution  for  Violation  of  Statutes. 

5.  Administration  of  anesthetic  by  nurse. — 

Ky.  St.  §  2613,  makes  it  unlawful  for  any 
person  to  practice  medicine  in  any  of  its 
branches  in  the  state  who  has  not  registered 
a  certificate  of  the  state  board  of  health  au- 
thorizing him  to  engage  in  the  practice.  Sec- 
tion 2615,  subsection  5,  provides  for  the  ex- 
amination bv  the  state  board  of  health  of 


174 


ANN.  CAS.  DIGEST  (1918C-1918E). 


any  other  persons  applying  for  authority  to 
treat  tlie  siclv  or  injured  or  in  any  way  dis- 
eluirge  the  duties  usually  performed  by 
physicians,  and  that  the  term  "practice  of 
medicine"  shall  not  include  trained  or  other 
nurses,  etc.  Section  2618  provides  that  to 
announce  to  the  public  in  any  way  a  readi- 
ness to  treat  the  sick  and  afflicted  shall  be 
deemed  to  be  engaging  in  the  "practice  of 
medicine."  A  duly  licensed  and  trained  nurse 
was  employed  to  administer  anesthetics  by 
a  duly  licensed  surgeon  under  his  direction, 
and  the  administering  in  each  case  was  made 
by  her  under  his  personal  direction  and  su- 
pervision. It  is  held,  that  in  the  performance 
of  such  services  the  nurse  was  not  engaged 
in  the  "practice  of  medicine"  within  the  stat- 
ute.    Frank  v.  South  (Ky.)  1918E-682. 

(Annotated) 

6.  Informjation. — Information  for  practicing 
osteopathy  without  a  license  from  the  board 
of  osteopathic  examiners  board,  declared  un- 
lawful by  Rev.  Codes,  §  1596,  need  not  nega- 
tive the  defendant  having  procured  a  tempo- 
rary certificate  from  the  secretary  of  the 
board,  as  permitted  by  section  1597;  such 
procurance  being  a  matter  of  defense.  State 
V.  Hopkins  (Mont.)  1918D-956. 

7.  Sufficiency  of  evidence. — The  register  of 
names  of  all  applicants  for  license  to  practice 
osteopathy,  whica  Rev.  Ck)des,  §  1585,  requires 
the  secretary  of  the  board  of  osteopathic  ex- 
aminers to  keep,  whether  they  are  granted  or 
refused  a  license,  and  which  such  section  de- 
clares to  be  prima  facie  evidence  of  all  mat- 
ters recorded  therein,  disclosing  that  one 
prosecuted  for  practicing  without  a  license 
had  never  applied  to  the  board  for  a  license, 
nor  even  to  the  secretary,  as  permitted  by 
section  1597,  for  a  temporary  license  or  cer- 
tificate, with  no  evidence  to  contradict  it,  is 
sufficient  on  that  point.  State  v.  Hopkins 
(Mont.)   1918D-956. 

8.  Even  if  the  allegation  of  the  information 
for  practicing  osteopathy  without  a  license 
from  the  board  of  osteopathic  examiners  that 
defendant  was  not  a  licensed  practitioner  of 
medicine  or  surgery  is  material,  the  register 
of  applicants  to  the  board  of  medical  exami- 
ners for  a  certificate  to  practice,  required  by 
Rev.  Ck)des,  §  1586,  to  be  kept  by  such  board, 
and  by  such  section  declared  prima  facie  evi- 
dence of  all  matters  therein  kept,  and  by  sec- 
tion 7962  presumed  to  have  been  correctly 
kept,  not  showing  defendant  to  have  been  an 
applicant,  is  sufficient  evidence  thereon. 
State  V.  Hopkins  (Mont.)  1918D-956. 

4.  Compensation. 

9.  Construction  of  contract. — ^Where  the 
services  of  a  specialist  are  engaged  under  a 
contract  that  they  shall  be  paid  a  certain 
sum  in  the  event  of  certain  specified  possible 
happenings  and  a  larger  amount  in  the  event 
of  other  happenings,  they  can  only  recover 
according  to  their  contract,  and,  if  the  speci- 
fied possible  happenings  do  not  happen,  can- 
not recover  the  larger  amount.  Pons's  Suc- 
cession (La.)  1918D-939. 

10.  Proving  nature  of  services. — One  who 
seeks  to  recover  for  medical  services  upon  the 


basis  of  consultations  at  so  much  per  consul- 
tation or  per  visit  should  be  able  to  show  how 
many  consultations  or  visits  were  had  or 
made.    Pons's  Succession  (La.)  1918D-939. 

5.  Liability  for  Malpractice. 

11.  Proof    of    negligence    of    dentist. — The 

jury  are  not  obliged  to  believe  the  expert 
testimony,  though  uncontradicted,  that  for 
defendant  dentist  to  allow  a  tooth,  while 
being  extracted,  to  fall  into  plaintiff's  throat, 
is  consistent  with  due  care.  Toy  v.  Mackin- 
tosh (Mass.)  1918C-1188.  (Annotated) 

12.  Though  the  jury  in  an  action  against  u 
dentist  for  permitting  plaintiff,  while  uncon- 
scious, to  swallow  a  tooth  being  extracted, 
may  disregard  the  expert  testimony  for  de- 
fendant that  the  tooth  had  nothing  to  do 
with  plaintiff's  condition  afterwards,  yet 
whether  hemiplegia,  aphasia,  and  plaintiff's 
weakened  condition  and  inability  to  work, 
with  which,  after  the  accident,  he  was  afflict- 
ed, might  be  the  result  thereof,  not  being  a 
matter  of  common  knowledge  and  observa- 
tion, but  depending  on  affirmative  proof,  with 
the  burden  on  plaintiff,  the  jury  may  not  find 
such  connection,  in  the  absence  of  testimony, 
other  than  that  soon  after  the  accident  these 
conditions  arose.  Toy  v.  Mackintosh  (Mass.) 
1918C-1188.  (Annotated) 

13.  Injury  by  use  of  X-ray. — The  evidence 
is  sufficient  to  sustain  a  finding  that  an  in- 
jury to  the  person  of  the  plaintiff  was  the 
result  of  a  burn  coming  from  the  taking  of  an 
X-ray.  Holt  v.  Ten  Broeck  (Minn.)  1918E- 
256.  (Annotated) 

14.  There  was  evidence  having  a  tendency 
to  prove  the  defendant  negligent  in  the  opera- 
tion of  the  X-ray  apparatus;  and  it  being 
wholly  under  his  control  and  the  injury  not 
being  one  naturally  resulting  when  the  ap- 
paratus was  properly  used,  the  riile  of  res 
ipsa  loquitur  applies.  This  rule  does  not  shift 
the  burden  of  proof  of  the  defendant,  but 
permits  the  jury  to  draw  an  inference  of 
negligence  from  the  result.  Holt  v.  Ten 
Broeck  (Minn.)  1918E-256.  (Annotated) 

15.  The  X-ray  was  not  applied  for  curative 
purposes.  In  determining  negligence  in  the 
operation  of  an  X-ray  machine,  the  test  is 
that  of  ordinary  care,  and  it  is  not  a  matter 
of  importance  whether  one  operating  it  is  a 
physician.  Holt  v.  Ten  Broeck  (Minn.) 
19i8E-256.  (Annotated) 


PICKETING. 

Validity  of  ordinance  against  picketing,  see 
Labob  Combinations,  1. 
.8 

TULCH    OF    PUBLIC    ACCOMMaDA- 
TION. 

Statute   forbidding  denial   of  rights    in,   see 
Civil  Rights,  1,  2. 


PLEADIXG. 


17^ 


PI^ADING. 

1.  Construction  of  Pleadings,   175. 

2.  Complaint  or  Declaration,  175. 

3.  Plea  or  Answer,  175. 

4.  Demurrer,    176. 

5.  Reply,   176. 

6.  Amendment  of  Pleadings: 

a.  Allowance  of  Amendment,  176. 

b.  Time  of  Amendment,  176. 

c.  Effect  of  Amendment,   176. 

7.  Issues  and  variance,  176. 

8.  Verification,  176. 

See  Accounts,  1,  2;  Contracts,  36;  Di- 
vorce, 2;  Equity,  1,  .3;  Rescission, 
Cancellation  and  Reformation,  8-10; 
Libel  AND  Slander,  44-47;  Injunctions, 
16,  17. 

Admissions  in  pleading,  see  Admissions  and 
Declarations,  13. 

Conformity  of  judgment  to  pleadings,  see 
Judgments,  2,  3. 

Departure  in  pleading  in  action  on  insurance 
policy,  see  Insurance,  22. 

Failure  to  reply  to  plea  of  contributory  neg- 
ligence, see  Negligence,  5. 

Judgment  on  pleadings,  see  Jldgmexts,  5. 

Objections,  see  Appeal  and  Error,  95,  96. 

Pleading  foreign  judgment,  see  Conflict  of 
Laws,  5. 

Plea  of  non  est  factum  in  action  on  bond 
"of  sherilf,  see  Suretyship,  4. 

Striking  out  unnecessary  special  plea  in  ac- 
tion on  bond  of  public  officer,  see  Sure- 
tyship, 7. 

1.  Construction  of  Pleadings. 

1.  Construction  against  pleader. — Any 
pleading,  whether  at  law  or  in  equity,  is  to 
be  most  strictly  construed  against  the  pleader 
thereof,  and  this  principle  applies  with 
especial  force  to  a  plea  which  is  in  the  nature 
of  a  confession  and  avoidance,  and,  where 
such  a  plea  has  on  the  face  of  it  two  intend- 
ments, it  must  be  construed  most  strongly 
against  the  party  who  pleads  it.  Florida 
East  Coast  R.  Co.  v.  Peters  (Fla.)  1918D-121. 

2.  Complaint  or  Declaration. 

2.  Averment  of  promise  to  pay. — ^A  special 
coiut  in  a  declaration  in  assumpsit,  counting 
upon  an  original  and  a  second  or  modified  con- 
tract, and  which  after  averring  both  contracts 
charges  a  promise  on  the  part  of  tlie  defend- 
ant to  pay  the  amount  accrued  to  plaintiflF 
under  the  contracts  pleaded,  is  not  rendered 
bad  on  demurrer  because  of  its  omission  to 

charge  a  promise  to  pay  "the  sum  of  

dollars"  alleged  in  a  previous  paragraph  to 
be  due  under  the  first  or  original  contract 
pleaded.  Parkersburg,  etc.  Sand  Co.  v.  Smith 
(W.  Va.)   1918E-449. 

3.  Nor  is  such  count  bad  on  demurrer  for 
failure  to  aver  a  promise  of  defendant  to  pay 
respectively  the  two  several  sums  demanded, 
one  accruing  to  plaintiff  under  tlie  contracts 
in  writing  pleaded,  and  the  other  under  other 


contracts  pleaded,  but  not  in  writing,  such 
promises  being  comprehended  under  the  gen- 
eral averment,  of  a  promise  to  pay  a  sum 
larger  than  the  aggregate  of  both  items,  in- 
tended and  sufficient  to  cover  both  sums  sued 
for.  Parkersburg,  etc.  Sand  Co.  v.  Smith  (W. 
Va.)   1918E-449. 

4.  Nor  is  such  count  bad  on  demurrer,  be- 
cause it  avers  a  promise  to  pay  interest  on 
the  sum  sued  for  from  a  date  anterior  to  the 
making  of  the  second  of  said  contracts,  inter- 
est being  incident  merely  to  the  right  to  re- 
cover tlie  principal  sum  sued  for.  Parkers- 
burg, etc.  Sand  Co.  v.  Smith  (W.  Va.)  1918E- 
449. 

3.  Plea  or  Answer. 

5.  Nature  of  plea  in  confession  and  avoid- 
ance.— A  plea  in  justification  or  excuse  ad- 
mits the  facts  alleged  by  the  plaintiff,  but  in 
ettect  denies  that  the  plaintiff  had  at  any 
time  a  good  cause  of  action,  either  because 
the  conduct  of  the  defendant  is  justified  in 
law,  or  because  he  is  excused  from  liability 
in  the  particular  case  through  some  act  or 
conduct  of  the  plaintiff.  Florida  East  Coast 
R.  Co.  V.  Peters  (Fla.)  1918D-121. 

6.  Requisites  of  plea. — All  matter  in  con- 
fession and  avoidance  must  be  pleaded 
specially,  the  plea  must  confess  the  facts 
pleaded,  and  the  plea  must  avoid,  and  the 
avoidance  must  be  pleaded  coextensive  with 
the  confession,  and  must  be  an  answer  to  the 
whole  of  what  is  adverselj'  alleged.  Florida 
East  Coast  R.  Co.  v.  Peters  (Fla.)  1918D-121. 

7.  Necessity  of  answering  all  counts — 
Where  a  plea  in  the  nature  of  confession  and 
avoidance  interposed  to  an  entire  declaration, 
consisting  of  a  number  of  counts,  is  found 
to  answer  only  some  of  such  counts,  it  is  de- 
murrable. Florida  East  Coast  R.  Co.  v.  Pet- 
ers  (Fla.)   1918D-121. 

8.  Necessity  of  special  plea. — ^In  an  action 
on  the  case,  since  the  adoption  by  this  court 
of  rules  71  and  72  of  the  rules  of  circuit 
court  in  common-law  actions,  the  defendant 
has  the  right  to  file  the  plea  of  not  guilty  to- 
gether with  special  pleas  in  the  nature  of 
confession  and  avoidance,  and,  if  he  would 
avail  himself  of  the  benefit  of  certain  matters 
of  defense,  he  must  file  such  special  pleas. 
Florida  East  Coast  R.  Co.  v.  Peters  (Fla.) 
1918D-121. 

9.  Requisites  of  plea  in  bar. — A  plea  in  bar 
of  the  plaintiff's  action  must  be  certain  to  a 
common  intent;  it  must  be  direct  and  positive 
in  the  facts  set  forth,  and  must  state  them 
with  necessary  certainty;  and  a  plea  which 
professes  to  be  to  the  entire  declaration,  but 
omits  to  answer  a  material  part  thereof,  is 
bad  on  demurrer.  Florida  East  Coast  R.  Co. 
V.  Peters   (Fla.)   1918D-121. 

10.  Duplicity. — Every  plea  must  be  simple, 
entire,  connected,  and  confined  to  a  single 
point.  A  plea  which  contains  more  than  one 
independent  fact,  or  set  of  facts,  either  of 
which  alone  is  a  sufficient  answer  to  the  dec- 
laration, is  bad  for  duplicity,  whether  the 
defense  is  in  bar,  or  in  abatement,  or  in  both. 
Florida  East  Coast  R.  Co.  v.  Peters  (Fla.) 
1918I>-121. 


176 


ANN.  CAS.  DIGEST  (1918C-1918E). 


4.  Demurrer. 

11.  Relation  back. — A  demurrer  to  an  af- 
firmative  defense  enables  the  defendant  to 
question  the  sufficiency  of  the  compJaint. 
Hanson  v.  Curtis   (N.  Y.)    1918E-247. 

12.  Effect  as  admission. — Demurrer  to  an 
answer  admits  the  facts  pleaded.  Walker 
V.  Richmond   (Ky.)   1918E-1084. 

13.  When  a  pleading  is  challenged  by  de- 
murrer, the  court  must  assume  that  its 
allegations  are  true.  Paulson  v.  Weeks 
(Ore.)   1918D-741. 

14  Pleading  good  in  part. — ^Demurrer  to 
answer  as  a  whole,  good  so  far  as  it  denies 
averments  of  the  petition,  is  properly  over- 
ruled, though  the  attempted  justification  in 
the  answer  of  part  of  the  alleged  slander  is 
insufficient.  Ray  v.  Shemwell  (Ky.)  1918C- 
1122. 

5.  Reply. 

15.  Departure. — A  plaintiff  cannot  allege 
that  he  has  fully  complied  with  a  contract, 
and  later  shift  his  ground  by  replying  that 
the  omissions  charged  in  defendant's  answer 
were  waived.  Waller  v.  New  York  Ins.  Co. 
(Ore.)   1918C-139. 

6.  Amendment  of  Pleadings. 

a.  Allowance  of  Amendment. 

16.  Necessity  that  cause  of  action  be 
stated. — An  amendment  to  a  complaint  will 
not  be  permitted  where  the  complaint,  even 
if  so  amended,  would  fail  to  state  a  cause 
of  action,  under  the  general  rule  that  amend- 
ments to  pleadings  should  be  permitted  in 
furtherance  of  justice.  Davis  v.  State 
(Idaho)   1918E-911. 

17.  Amendment  of  no  avail.'— Under  sec- 
tion 1,  c.  7,  Kurd's  Rev.  St.  1915-16,  giving 
power  to  permit  amendments  for  furtherance 
of  justice,  etc.,  an  amendment  to  an  affidavit 
of  merit,  which  is  essential  to  the  proper 
presentation  of  a  defense,  should  be  per- 
mitted, although  the  allowance  of  an  amend- 
ment under  this  section  is  largely  discretion- 
ary with  the  trial  court,  and  an  amendment 
which  would  be  of  no  benefit  to  the  party 
seeking  it  need  not  be  allowed.  Seovill  Mfg. 
Co.  v.  Cassidy   (111.)   1918E-602. 

18.  In  a  suit  on  guaranty,  the  refusal  to 
permit  an  affidavit  of  merit  to  be  amended 
to  categorically  deny  the  manufacture  and 
delivery  of  articles  covered  by  the  guaranty, 
in  order  to  place  upon  plaintiff  the  burden 
of  proving  such  facts,  was  not  injurious  to 
defendant,  Avhere  the  proof  in  the  record 
showed  that  plaintiff  had  delivered  such 
goods  of  value  exceeding  the  guaranteed  sum. 
Seovill  Mfg.  Co.  v.  Cassidy  (111.)   1918D-602. 

19.  Effect  of  nonresidence  of  parties. — A 
petition  which  fails  to  state  a  cause  of  ac- 
tion may  be  amended  so  as  to  make  it  state 
a  cause  of  action,  although  some  of  the  de- 
fendants may  not  be  residents  of  the  county 
in  which  the  petition  is  filed  and  may  be 
attacking  the  jurisdiction  of  the  court  be- 
cause of  such  nonresidence.  Wells  v.  Han- 
sen   (Kan.)    1918D-230. 


b.  Time  of  Amendment. 

20.  Amendment  on  appeal. — Where  plain- 
tiffs have  a  cause  of  action,  but  have  mis- 
taken their  remedy,  the  supreme  court  may,^ 
under  St.  1915,  §  2836b,  authorize  amend- 
ments of  pleadings  on  appeal.  State  v.  Dis- 
trict  Board    (Wis.)    1918C-584. 

21.  Nunc  pro  tunc  order  after  judgment. — 
A  nunc  pro  tunc  order  cannot  be  made  solely 
on  affidavits,  but  must  have  some  record 
evidence  therefor,  so  that  after  verdict  and 
judgment  for  plaintiff  the  court  cannot  enter, 
on  affidavits  by  counsel,  a  nunc  pro  tunc 
order  traversing  on  the  record  an  affirmative 
allegation  of  the  answer.  Lancaster  Electric 
Light  Co.  V.  Taylor  (Ky.)  1918C-591. 

c.  Effect  of  Amendment. 

22.  Under  sections  4160  and  4171,  Code 
1915,  in  every  amendatory  or  supplemental 
pleading  filed  by  a  party,  it  is  necessary  for 
him  to  therein  restate  his  entire  cause  of 
action,  defense,  or  reply,  and  all  matters  set 
forth  in  his  original  pleading  and  not  carried 
forward  into  his  amended  or  supplemental 
pleading  are  abandoned,  and  a  judgment  for 
the  defendant  dismissing  a  cause  on  the 
merits  is  res  adiudicata  only  as  to  such  mat- 
ters as  were  carried  forward  by  a  plaintiff 
into  his  amended  or  supplemental  complaint. 
Albright   v.   Albright    (N.   Mex.)    1918E-542. 

7.  Issues  and  Variance. 

23.  Plaintiff  suing  for  injuries  caused  by 
negligence  is  under  the  burden  that  his  proof 
in  substance  shall  correspond  with  the  aver- 
ments of  his  pleadings.  Mempnis  St.  R.  Co. 
V.  Cavell   (Tenn.)    1918C-42. 

24.  Unnecessary  allegations. — ^Where  plain- 
tiff's petition,  in  an  action  for  damages  for 
fraudulent  manipulation  of  a  popularity  con- 
test, is  in  two  counts,  one  of  conspiracy,  and' 
another  for  breach  of  an  implied  contract, 
failure  to  support  the  first  does  not  defeat 
the  action,  but  it  is  sufficient  if  other  alle- 
gations constituting  the  second  cause  of  ac- 
tion are  sustained,  since  failure  to  prove  un- 
necessary allegations  cannot  defeat  an  ac- 
tion.    Smead  v.   Stearns    (Iowa)    1918C-745. 

8.  Verification. 

25.  Waiver. — ^Although  section  110  of  the 
Civil  Code  requires  that  the  answer  to  a 
petition  in  an  action  founded  on  a  written 
instrument  for  the  unconditional  payment 
of  money  shall  be  verified,  the  verification  is 
waived  when  the  plaintiff  joins  issue  on  the 
answer,  introduces  evidence  contradicting 
such  defense,  and  asks  instructions  covering 
his  theory  of  the  law  pertaining  thereto. 
Emery  v.  Bennett    (Kan.)    1918D-437. 

(Annotated)' 


PUBDGE. 

Priority  of  pledge  of  stock  to  lien  of  build- 
ing and  loan  association,  see  Btttldixo. 
AKD  Loan  Associations,  1-8. 


POLICE  OFFICEES— PKESCEIPTIOIi[S. 


177 


1.  Mortgage  or  pledge. — The  transfer  of 
title  of  incorporeal  property  is  generally 
an  essential  part  of  the  delivery  of  it  lu 
pledge,  and  if  there  is  a  doubt  whether  it  is 
a  pledge  or  a  mortgage  the  law  favors  the 
conclusion  that  it  is  a  pledge.  Martin  v. 
Bankers'   Trust    Co.    (Ariz.)    1918E-1240. 

2.  An  assignment  of  corporate  stock  as 
collateral  security,  though  transferring  title 
t-^  the  stock,  is  a  pledge  and  not  a  chattel 
mortgage.  Martin  v.  Bankers'  Trust  Co. 
(Ariz.)    1918E-1240. 

3.  Consideration. — A  pre-existing  indebted- 
ness is  a  sufficient  consideration  to  sustain 
an  assignment  of  corporate  stock  as  security. 
Martin  v.  Bankers'  Trust  Co.  (Ariz.)  1918E- 
1240. 

4.  Foreclosure — Sale  of  several  parcels  to- 
gether,— On  the  foreclosure  of  a  pledge  of 
shares  of  stock  of  a  smelting  company  and 
a  railroad  company,  it  is  not  error  to  sell 
the  shares  of  the  two  companies  together 
where  the  court  liuds  it  will  be  for  the  best 
interests  of  all  parties.  Martin  v.  Bankers' 
Trust  Co.    (Ariz.)    1918E-1240. 


POLICE  OFFICERS. 

Conductor  and  motorman  as  policeman,  see 

Cabbiebs  of  Passengers,  4. 
Validity  and  construction  of  act  pensioning 

police  officers,  see  Pensions,  2,  4. 


POWERS. 

Effect  of  war  on  irrevocable  power  of  attor- 
ney, see  Aliens,  4. 

Power  of  appointment  as  enlarging  estate  of 
life  tenant,  see  Life  Estates,  1. 

Power  of  attorney,  see  Agency,  5. 

Power  of  sale  in  mortgage,  see  Mobtgages, 
11-14. 

1.  Specific  performance  of  contract  to  exer- 
cise power  by  will. — Equity  will  not  specifi- 
cally enforce  a  contract  to  exercise  a  power 
of  appointment  by  will  in  favor  of  one  who 
advanced  money  to  the  donee  of  the  power, 
since  the  power  to  appoint  by  will  implies 
that  it  shall  be  the  will  of  the  donee  of  the 
power  at  the  time  of  his  death,  and  such 
power  cannot  be  executed  by  grant  under 
Real  Property  Law  (Consol.  Laws,  c.  50)  §§ 
167,  168,  and  to  permit  it  to  be  exercised  by 
specific  performance  of  a  contract  would  be, 
in  effect,  to  permit  its  exercise  by  grant. 
Farmers'  Loan,  etc.  Co.  v.  Mortimer  (X.  Y.) 
1918E-1159.  (Annotated) 

2.  Equity  will  not  declare  a  trust  on  prop- 
erty appointed  under  a  will  in  favor  of  one 
to  whom  the  donee  of  the  power  contracted 
to  appoint,  where  the  property  involved  was 
not  the  property  of  the  donee,  but  the  prop- 
erty of  another  over  which  he  had  only  the 
power  to  appoint  by  will.  Farmer  Loan,  etc. 
V.  Mortimer  (X.  Y.)  1918E-1159. 

(Annotated) 


POIilCE    POWER. 

See  CoNSTiTUTiONAi.  Law,  3-9. 
Validity  of  statute  prohibiting  assignment  of 
claim  to  nonresident,  see  Assignments, 


PRACTICE. 

See  Actions  and  Proceedings;   Dismissal 
AND  Nonsuit;  Pleading;  Trial. 


POLITICAL    PARTY. 

Definition,  see  WoBDS  and  Phrases,  8. 


PRACTICE    OF   lAW. 

Validity  of  contract  contemplating  practice 
of  law  by  corporation,  see  Contracts, 
16. 


POOL   HALLS. 

Validity  of  statute  providing  for  local  op- 
tion as  to  question  of  prohibition  of  pool 
halls,  see  Local  Option,  1,  2. 


POSSESSION. 


PREMISE. 

Construction   of  habendum  clause  with  pre- 
mises, see  Deeds,  5. 


PREMIUMS. 

Payment,  see  Life  Insurance,  1-3. 


See  Adveese  Possession. 

POSTNUPTIAL  AGREEMENT. 

See  Husband  and  Wife,  12. 

POWER  COMPANIES. 

See  Electricity. 

Ann.  Cas.  Dig.  1918C-E.— 12. 


PRESCRIPTION. 

Creation  of  rights  in  division  wall  by  pre- 
scription, see  Adjoining  Landowners, 
3. 


PRESCRIPTIONS. 

Furnishing  prescription  for  intoxicating  liq- 
uors, see  Intoxioating  Liquoes,  4-7, 
14. 


178 


ANN.  CAS.  DIGEST  (1918C-1918E). 


PRESENCE.  In  proceeding  under  Torrena  Act,  see  Recobo- 

iNG  Acts,  7. 
Right  of  accused  to  be  present  at  trial,  see      Service    of  process  against  foreign   corpora- 
Cbiminal  Law,  4-11.  tions,  see  Cobpobations,  51-53. 


PRESUMPTIONS. 

See    Evidence,    36-38    and    cross-references 

there  given. 
Validity  of  statute  creating  presumption  of 

fact,  see  E^^DENCE,  44. 


PRICE    FIXING. 

Control  of  price  of  patented  article  on   re- 
sale as  monopoly,  see  Monopolies,  3. 


PRIEST. 

Failure  to  administer  communion  as  defama- 
tion of  character,  see  Religious  So- 
cieties, 4. 

Liability  for  issuance  of  letter  forbidding 
communicants  to  read  or  subscribe  to 
certain  newspapers,  see  Rexigious  So- 
cieties, 6. 


PRIMARY    ELECTIONS. 

See  Elections,  5-13. 

PRINCIPAL  AND  AGENT. 

See  Agency. 

PRINCIPAL  AND  SXTRETT. 

See  Subetyship. 

PRIVILEGED  COMMUNICATIONS. 

See  Witnesses,  3-6. 

As  affecting  liability  for  libel  or  slander,  see 
Libel  and  SLAin>EB,  10-28. 

PRIVILEGES    AND    IMMUNITIES. 

See  Constitutional  Law,  11,  12. 

PROBATE. 

See  Wills,  17-25. 

PROCEEDINGS. 

See  Actions  and  Pboceedings. 


PROFESSION. 

See  AxTOBNEYS;  Licenses;  Physicians  and 

SUBGEONS. 


PROFITS. 

As  element  of  loss  under  insurance  contract, 
see  Fire  Insubance,  19. 


PROMISSORY  NOTES. 

See  Bills  and  Notes. 

PROPONENT. 

Evidence  as  to  conduct,  see  Wills,  20. 

PRO   RATA. 

Meaning  of  term,  see  Words  and  Phbases,  9, 

PROSECUTING   ATTORNEYS. 

Criticism  by  prosecuting  attorney  of  attor- 
ney for  defendant  as  privileged,  see 
Libel  and  Slaxdeb,  12,  13. 

District  attorney  as  party  to  divorce  suit, 
see  Divorce,  3-5. 

PROSPECTIVE  RIGHT. 

Enforcement  by  mandamus,  see  Mandamus, 
2. 

PROVINCE  OF  COURT  AND  JURY. 

See  Questions  of  Law  and  Fact. 


PROXIMATE    CAUSE. 

Negligent  act  of  plaintiff  as  contributing  to 
injury,  see  Negligence,  4. 

Of  act  of  accused  as  cause  of  death  of  de- 
ceased, see  Homicide.  14. 

Of  damage  to  goods  in  carrier's  hands  by 
freezing,  see  Carriers  of  Goods,  5. 

Of  injury,  see  Negligence,  2,  3. 


PROCESS. 

In    garnishment    proceedings,    see    Gabnish- 
MENT,  2. 


PROXY. 

Defined,  see  Corporations,  39. 


PUBLIC  ACCOMMODATION^— PUBLIC  LAXDS. 


179 


PUBLIC   ACCOMMODATION. 

Statute  forbidding  denial  of  rights,  see  CrviL 
Rights,  1,  2. 


FUBUC   ASSEMBLY  HAUL. 

Liability  of  city  for  injuries  to  person  in 
municipal  asseuibly  hall,  see  MuxictPAi, 
Corporations,  22-27. 


PUBLICATION. 

Of  libel  or  slander,  see  Libel  and  Slander,  3. 

PUBLIC   HIGHW^AYS. 

See  Streets  and  Highways. 

PUBLIC  IMPROVEMENTS. 

Assessments  for,  see  Taxation,  44-51. 
Liens  for  working  on  public  improvement  con- 
tracts, see  ^Mechanics'  Liexs,  1,  3,  14, 

15. 

PUBLIC  LANDS. 

1.  Grant  by  State,  179. 

2.  Land  Department,  179. 

3.  Grants  in  Aid  of  Railroads,  179. 

4.  Transfer  of  Rights,  170. 

5.  Cancellation  of  Deeds: 

a.  In  General,  180. 
1).  Actions: 

(1)  .Turisdiction.    180. 

(2)  ladies,    180. 

(3)  Pajties,    180. 

(4)  Evidence,  181. 

(5)  Relief  Granted,   181. 

Purchaser  of  fraudulent  patent  as  bona  fide 
purchaser,  see  Vendor  and  Purchaser, 
17. 

1.  Grant  by  State. 

1.  The  state  is  the  source  of  title,  and  a 
patent  issued  under  its  authority,  regular  on 
its  face,  confers  legal  title.  Hennessy  v. 
Blair  (Tex.)   1918C-474. 

2.  Wrongful  procurement  of  patent. — 
Where  the  officers  of  the  state  issued  a  pat- 
ent on  a  forged  assignment  of  an  unlocated 
land  certificate,  their  erroneous  action  is,  at 
most,  only  voidable.  Hennessy  v.  Blair 
(Tex.)   1918C-474. 

3.  Ratification  of  deed  secured  by  fraud. — 
It  should  not  be  assumed  that  the  legislature 
has  ratified  sales  of  school  lands  secured  by 
gross  fraud  unless  the  language  of  the  stat- 
ute leads  unmistakal)lv  to  that  conclusion. 
State  V.  Hvde  (Ore.)   1918E-688. 

4.  Sess.  Laws  1899,  p.  164,  §  27,  directed 
the  state  land  board,  which  had  been  author- 


ized to  lend  the  school  funds  on  far  mort- 
gages, to  foreclose  all  mortgages  which  were 
not  adequate  securitj'  and  bid  in  the  lands 
at  its  true  cash  value,  but  through  mistake 
did  not  empower  the  board  to  sell  land  so 
purchased.  Laws  1901,  p.  304,  authorized 
the  board  to  bid  in  lands  sold  under  fore- 
closure of  mortgage  given  to  secure  a  loan 
from  the  school  fund,  and  provided  that  such 
lands  should  be  held  for  sale  and  sold  as  op- 
portunity might  offer  on  the  best  terms  ob- 
tainable, and  that  all  sales  of  land  thereto- 
fore made  by  the  board  were  thereby  ratified 
and  confirmed,  and  whenever  the  full  pur- 
chase price  should  have  been  paid  title  in  fee 
simple  should  vest  in  the  purchasers  and 
their  successors  and  assigns.  It  is  held,  that 
this  was  passed  to  correct  the  error  in  the 
Act  of  1899  and  related  to  purchases  made 
by  the  state  on  the  foreclosure  of  school 
fund  mortgages  and  authorized  sales  thereof 
and  confirmed  sales  theretofore  made,  and 
had  no  reference  to  sales  of  the  state's  grant 
lands  and  was  not  intended  to  confirm  fraud- 
ulent purchases  of  such  grant  lands.  State 
v.  Hyde   (Ore.)   1918E-688. 

2.  Land  Department. 

5.  Effect  of  decision. — As  the  administra- 
tion of  the  forest  reserve  act  is  vested  in  the 
land  department,  the  question  whether  a  re- 
linquishment of  lands  incorporated  in  a  for- 
est reserve,  the  owner  selecting  other  lands 
in  lieu  thereof,  is  sufficiently  in  compliance 
with  the  rules  to  be  accepted  is  solely  for 
the  land  department.  State  v.  Hvde  (Ore.) 
1918E-688.  (Annotated) 

6.  Under  the  regulations  of  the  interior 
department,  a  selector  of  unsurveyed  public 
lands  acquires  an  inchoate  right  thereto 
which  on  survey  and  compliance  with  the 
rules  entitles  him  to  a  patent;  hence  the  title 
to  base  lands  included  in  a  forest  reserve 
and  relinquished  in  lieu  of  other  lands  is  not 
subject  to  attack  on  the  theory  that  there 
could  be  no  relinquishment  because  the  lieu 
lands  were  unsurveyed.  State  v.  Hyde  (Ore.) 
1918E-688.  (Annotated) 

3.  Grants  in  Aid  of  Railroads. 

7.  Withdrawal  from  settlement — Lands 
previously  claimed. — A  railroad  company 
which,  prior  to  the  enactment  of  the  Act  of 
June  25.  1910  (36  St.  L.  847:  8  Fed.  St.  Ann. 
2d  ed.  6.'>7),  providing  for  the  withdrawal  of 
certain  lands  from  settlement,  filed  a  list  of 
indemnity  lands  claimed  by  it,  is  entitled  to 
the  lands  so  claimed  despite  a  subsequent 
order  withdrawing  them  from  settlement. 
Central  Pac.  R.  Co.  v.  Lane  (D.  C.)  1918C- 
1002.  (Annotated) 

4.  Transfer  of  Rights.  ' 

8.  Unlocated  certificate. — An  unlocated 
certificate  for  public  lands  may  be  assigned. 
Hennessy  v.  Blair  (Tex.)   1918C-474. 

9.  Relinquishment  of  timber  lands. — L^'n- 
der  Act  Cong.  -Tune  4.  1897,  c.  2,  30  Stat.  3f 
(9  Fed  St.  Ann.  [2d  ed.]  588)  providing  that 
in  cases  in  which  a  tract  of  land  covered  by 


180 


•ANN.  CAS.  DIGEST  (1918C-1918E). 


an  unperfected  bona  fide  claim  or  by  a  patent 
is  included  within  the  limits  of  a  public  for- 
est reservation  the  settler  or  owner  may  re- 
linquish the  tract  to  the  government  and  se- 
lect in  lieu  thereof  a  tract  of  vacant  land 
open  to  settlement,  title  to  the  base  lands 
passes  to  the  United  States  on  the  accept- 
ance of  the  deed  and  the  approval  of  the  se- 
lection by  the  general  land  office,  and^  though 
deeds  have  been  executed  and  filed,  title  does 
not  pass  until  the  transfer  is  accepted  by 
that  oflSce.    State  v.  Hyde  (Ore.)  1918E-688. 

(Annotated) 

5.    Cancellation  of  Deeds. 

a.  In  General. 

10.  What  constitutes  fraud. — ^Where,  by 
means  of  applications  in  the  names  of  dum- 
my applicants  and  by  false  affidavits,  thous- 
ands of  acres  of  school  lands  \rere  acquired 
from  the  state  by  nonresidents,  contrary  to 
the  policy  of  the  state  to  sell  only  to  res- 
idents who  purchase  for  their  own  benefit 
and  in  quantities  not  exceeding  320  acres  to 
each  person,  there  is  such  fraud  as  justified 
the  cancellation  of  the  deeds,  though  the 
state  received  the  price  at  which  the  lands 
were  held  for  sale,  especially  as  the  mar- 
ket value  of  the  lands  subsequently  in 
creased  and  the  state  land  board  raised  the 
selling  price;  it  being  probable  that,  if  sales 
had  been  made  only  to  qualified  purchasers 
in  amounts  not  exceeding  320  acres  to  each 
purchaser,  the  bulk  of  the  lands  would  have 
remained  available  for  sale  at  the  higher 
prices.     State  v.  Hyde    (Ore.)    1918E-688. 

11.  Land  relinquished  to  goverimient. — Act 
Ck)ng.  March  3,  1905,  c.  1495.  33  Stat.  1264, 
repealing  Act  Cong.  June  4.  1897,  c.  2,  30 
Stat.  36  (9  Fed.  St.  Ann.  [2d  ed.]  588)  pro- 
viding in  cases  where  a  tract  of  land  covered 
by  an  imperfect  bona  fide  claim  or  by  a 
patent  is  included  within  the  limits  of  a  pub- 
lic forest  reservation,  the  settler  or  owner 
may  relinquish  it  to  the  government  and  se- 
lect in  lieu  thereof  a  tract  of  vacant  public 
land  open  to  settlement,  but  providing  that 
the  selections  heretofore  made  in  lieu  of 
lands  relinquished  may  be  perfected  as 
though  the  act  had  not  been  passed,  does  not, 
where  title  to  base  land  relinquished  in  lieu 
of  other  lands  to  be  selected  from  the  public 
domain  was  acquired  from  the  state  by 
fraud,  vest  such  title  in  the  United  States, 
so  as  to  preclude  an  attack  on  the  title  to 
base  land  by  the  state,  where  the  United 
States  has  not  accepted  the  conveyance  of 
the  base  lands.  Statey.  Hyde  (Ore.)  1918E- 
688.  (Annotated) 

b.  Actions. 

(1)  Jurisdiction. 

12.  Effect  of  uncompleted  transfer  to 
United  States. — Where  deeds  to  school  lands 
within  a  national  forest  reserve  were  ob- 
tained by  fraud  and  the  grantees  or  their 
successors  executed  deeds  to  the  United 
States   and   filed  them   as   the  basis   of   lieu 


land  selections,  but  the  deeds  were  not  ac- 
cepted by  the  land  office,  the  pendency  in 
such  office  of  proceedings  on  charges  against 
the  validity  of  the  selections  of  lieu  lands 
does  not  prevent  an  action  to  cancel  the 
deeds  from  the  stale,  as,  the  United  States 
having  acquired  no  interest  in  the  lands,  the 
general  land  office  has  no  control  over  them; 
its  jurisdiction  being  confined  to  the  public 
domain.     State  v.  Hyde  (Ore.)  1918E-688. 

(2)  Laches. 

13.  While  it  is  a  suspicious  circumstance 
that  146  applications  should  be  made  within 
a  few  months  to  purchase  state  lands  in  a 
forest  reserve  and  that  deeds  should  issue 
shortly  afterwards  to  a  handful  of  nonres- 
idents transferring  many  thousands  of  acres 
of  such  lands,  where  these  matters  apparent- 
ly passed  unnoticed  by  the  state  officials, 
laches  is  not  imputable  to  the  state  in  its 
failure  to  act  for  the  cancellation  of  the 
deeds  for  fraud  in  the  inception  of  the  fratid, 
as  notice  must  be  more  than  would  excite 
the  suspicion  of  a  cautious  and  wary  person. 
State  V.  Hyde  (Ore.)  1918E-688. 

14.  A  delay  of  fifteen  years  from  1898  to 
1913  in  bringing  suit  to  set  aside  deeds  to 
school  lands  based  on  fraudluent  applications 
by  dummy  applicants  is  held  not  to  be  such 
laches  as  barred  the  suit,  where  the  fraud 
Avas  not  discovered  until  1905  and  the  facts 
were  not  fully  known  imtil  1908,  at  which 
time  the  position  of  innocent  defendants  had 
become  fixed,  and  the  condition  and  value  of 
the  lands  did  not  change  appreciably  and 
where  the  marshaling  of  the  facts  involved  a 
vast  amount  of  investigation  and  painstak- 
ing labor  and  the  charges  reflected  on  the  in- 
tegrity of  a  number  of  citizens  of  the  state 
necessitating  careful  investigation  before 
making  such  charges  and  taking  action,  es- 
pecially where  in  spite  of  the  delay  the  ev- 
idence of  the  fraud  was  clear  and  the  fraud 
could  not  have  been  disproved.  State  v. 
Hyde  (Ore.)  1918E-688. 

(3)  Parties. 

15.  United  States. — ^Where  deeds  executed 
by  grantees  of  school  lands  or  their  succes- 
sors to  the  United  States  and  filed  as  a  basis 
for  lieu  land  selections  have  never  been  ac- 
cepted by  the  United  States  and  it  has  never 
been  determined  by  the  general  land  office 
that  the  grantors  have  title  or  that  the 
deeds  are  effectual  to  pass  title,  the  United 
States  has  no  interest  in  the  lands  and  is  not 
a  necessary  party  to  a  suit  by  the  state  to 
cancel  the  deeds  from  the  state  for  fraud. 
State  v.  Hyde  (Ore.)  1918E-688. 

16.  Where  school  lands  within  a  national 
forest  reserve  were  purchased  from  the  state 
in  the  name  of  dummy  applicants,  who  im- 
mediately assigned  their  contracts  to  the 
party  for  whose  benefit  the  applications 
were  made  in  violation  of  the  statute  con- 
templating that  the  purchase  shall  be  for 
the  benefit  of  the  applicant,  and  after  the  ex- 
ecution of  ^ceds  the  grantees  or  their  suc- 
cessors executed  deeds  to  the  United  States 


PUBLIC  LIBRAEY— PUBLIC  OFFICERS. 


181 


■as  a  basis  for  lieu  land  selections,  and  suck 
deeds  were  accepted  by  the  proper  officers  of 
the  United  States,  the  deeds  from  the  state 
cannot  be  canceled  because  of  the  fraud  in- 
ducing their  execution  ■without  the  presence 
of  the  United  States  as  a  party,  though  the 
United  States  has  co-operated  with  the  state 
in  marshaling  the  evidence  of  the  fraud  and 
instituted  adverse  proceedings  agaiAst  the 
corresponding  selections  on  the  public  do- 
main.    State  V.  Hyde   (Ore.)   1918E-690, 

17.  That  the  United  States  cannot  be  sued 
without  its  consent  does  not  authorize  the 
court  to  pass  a  decree  canceling  the  deeds 
which  it  cannot  enforce.  State  v.  Hyde 
(Ore.)   1918E-690. 

18.  Purchasers  of  lien  lands  who  have  no 
title. — In  a  suit  to  cancel  deeds  to  school 
lands  within  a  forest  reserve  which  have 
been  subsequently  offered  to  the  United 
States  as  a  basiis  for  lieu  land  selections, 
but  which  have  not  been  accepted  by  the 
United  States,  it  is  immaterial  whether  pur- 
chasers of  the  land  selected  in  lieu  thereof 
were  bona  lide  purchasers,  as  their  title  to 
the  selected  lands  is  dependent  on  the  title 
of  the  United  States  to  the  base  lands  and 
the  United  States  never  acquired  title  to  the 
base  lands.     State  v.  Hyde  (Ore.)  191E-688. 

(4)  Evidence. 

19.  Sufficiency  of  evidence  of  fraud.— In  a 
suit  to  cancel  deeds  to  school  lands  pur- 
chased from  the  state  on  applications  of 
dummy  applicants,  the  evidence  is  held  to 
show  that  a  party  who  financed  the  pur- 
chases and  took  deeds  to  secure  money  ad- 
vanced by  him  was  a  party  to  the  conspiracy 
and  was  not  an  innocent  purchaser.  State 
V.  Hyde   (Ore.)   1918E-688. 

19  a.  Where  the  grantors  of  the  United 
States  have  conveyed  the  selected  lands  and 
have  executed  to  the  purchasers  powers  of 
attorney  authorizing  the  selection  in  the 
names  of  the  grantors  of  lieu  lands  and  the 
flale  of  the  selected  lands,  and  the  powers  of 
attorney  have  been  exercised  and  land  se- 
lected and  conveyed  to  parties  who  were  in 
possession,  such  parties,  in  protection  of 
their  titles  to  the  selected  lands,  are  entitled 
to  claim  that  the  United  States  was  the 
owner  of  the  base  lands,  and  as  a  corrollary 
to  that  claim  to  urge  that  the  controversy 
could  not  be  determined  in  the  absence  of 
the  United  States  as  a  party.  State  v.  Hyde 
(Ore.)   1918E-688. 

20.  In  a  suit  to  cancel  deeds  to  school 
lands,  the  evidence  is  held  to  be  sufficient  to 
establish  a  conspiracy  to  obtain  such  lands 
in  fraud  of  the  public  policy  of  the  state  by 
procuring  a  large  number  of  applications 
from  dummy  applicants,  who  immediately 
assigned  their  contracts,  and  to  show  that  a 
defendant  who  thereby  acquired  deeds  to 
thousands  of  acres  of  land  was  a  party  to 
the  conspiracy  and  the  author  of  it.  State 
T,  Hyde  (Ore')   1918E-688. 

(5)   Relief  Granted. 

21.  Accounting  for  profits. — The  state, 
fltting  to  cancel  deeds  to  school  lands  relin- 


quished to  the  United  States  as  the  basis  of 
lieu  land  selections  for  fraud  in  procuring 
such  deeds,  cannot  recover  the  lands  and  also 
have  an  accounting  from  the  grantees  for 
money  secured  by  them  through  the  at- 
tempted exchange  of  the  lands.  State  v. 
Hyde  (Ore.)   1918E-688. 


PUBLIC   LIBRARY. 

As  necessary  municipal  building  for  which 
land  may  be  condemned,  see  Eminent 
Domain,  5. 


PUBLIC    OFFICERS. 

1.  In  General,   181. 

2  Qualifications  and  Eligibility,  182. 

3.  Compensation  and  Expenses: 

a.  In  General,  182. 

b.  Extra    Duties    Imposed    by    Statute, 

182. 

c.  Validity  of  Agreement  to  Share  Fees, 

182. 

4.  Accounting,  182. 

5.  Official  Bonds,   183.' 

Conditional  signing  by  surely  on  bond  of 
public  officer  as  defense  to  action  on 
bond,  see  Suretyship,  4-7. 

Withdrawal  of  candidacy,  see  El£CTiOJfS, 
11-13. 

1.  In  General. 

1.  Members  of  committee  as  public  offi- 
cers.— Members  of  a  city  council,  appointed 
a  joint  special  committee  to  expend  the  ap- 
propriation for  and  to  arrange  for  a  Fourth 
of  July  celebration,  were  in  no  sense  "public 
officers,"  so  as  to  be  exempt  from  liability 
for  personal  injury  resulting  from  the  set- 
ting off  of  fireworks,  as  "public  officers"  are 
those  officers  who  are  required  by  law  to  be 
elected  or  appointed,  and  whose  duties  are 
prescribed  by  law,  such  as  municipal  officers 
acting,  not  by  virtue  of  authority  conferred 
by  ordinance  or  resolution,  but  by  resolu- 
tion of  acts  of  the  legislature  Sroka  v.  Hal- 
liday   (R.  1.)    1918D-961.  (Annotated) 

2.  Qualifications    and    Eligibility. 

2.  Statute  limiting  consecutive  service. — 
A  statutory  provision  (Acts  1915,  p.  52), 
amending  an  act  (Acts  1911,  p.  289)  creat- 
ing a  commission  form  of  municipal  govern- 
ment and  regulating  the  selection  and  elec- 
tion of  commissioners,  .  .  ."  which  pro- 
no  person  shall  be  eligible  to  the  office  of 
president  or  member  of  the  board  of  commis- 
sioners who  shall,  either  by  election  or  ap- 
pointment, have  held  the  office  of  president 
or  member  of  the  board  of  commissioners 
for  three  consecutive  years  within  the  four 
years  immediately  preceding  the  date  of  the 
election,  is  not  unconstitutional,  as  exceed- 
ing the  power  of  the  legislature  to  fix  the 
qualifications  for  the  office  of  c\iy  commis- 


182 


ANN.  CAS.  DIGEST   (1918C-1918E). 


Bioner;  the  matter  of  being  a  candidate  be- 
ing merely  a  privilege  and  not  a  right. 
State  V.  Teasley    (Ala.)    1918E-347. 

(Annotated) 

3.  A  statutory  provision  amending  an  act 
creating  a'  commission  form  of  municipal 
government  and  regulating  the  selection  and 
election  of  commissioners,  which  provides 
that  no  person  shall  be  eligible  to  the  office 
of  city  commissioner  who  shall  have  held 
such  office  for  three  consecutive  years  within 
the  four  years  preceding  the  date  of  election, 
does  not  violate  Const.  §  22,  nor  Const.  U.  S. 
art  1,  §  10,  relating  to  e.\  post  facto  laws; 
an  "ex  post  facto  law"  being  one  which  im- 
poses a  punishment  for  an  act  which  was  not 
punishable  when  it  was  committed,  and  im- 
poses additional  punishment,  or  changes  the 
rules  of  evidence  by  which  less  or  different 
testimony  is  sufficient  to  convict.  State  v. 
Teasley   (Ala.)   1918E-347.  (Annotated) 

4.  "An  act  to  amend  an  act  to  create  a 
commission  form  of  municipal  government, 
.  .  .  and  to  regulate  the  selection  and  elec- 
tion of  commissioneres,  .  .  ."  which  pro- 
vides that  no  person  shall  be  eligible  to  the 
office  of  commissioner  who  has  held  such  of- 
fice for  three  consecutive  years  within  the 
four  years  immediately  preceding  the  elec- 
tion, does  not  violate  Const.  §  45,  requiring 
that  each  law  shall  contain  one  subject, 
Avhich  shall  be  clearly  expressed  in  its  title. 
State  V.  Teasley  (Ala.)  1918E-347. 

(Annotated) 

5.  A  statutory  provision  amending  an  act 
to  create  a  commission  form  of  municipal 
government  and  to  regulate  the  selection  and 
election  of  commissioners,  which  provides 
that  no  person  shall  be  eligible  to  the  office 
of  commissioners  who  shall  have  held  such 
office  for  three  consecutive  years  within  the 
four  years  immediately  preceding  the  date  of 
the  election,  is  not  invalid,  as  being  retroac- 
tive, when  applied  to  a  candidate  for  office 
who  had  held  the  office  of  city  commissioner 
for  two  and  one-half  years  before  the  stat- 
ute was  passed.  State  v.  Teasley  (Ala.) 
1918E-347.  (Annotated) 

6.  Statute  prescribing  political  belief  as 
"recommendatory"  only. — Under  Pub.  Loc. 
Laws  1913,  c.  441,  §  7,  providing  that  '"one 
each  of  the  two  members  of  the  several 
township  highway  commissions  to  be  elected 
under  this  act  shall,  so  far  as  feasible  and 
practicable,  come  from  each  of  the  two  lead- 
ing political  parties  of  such  township,"  the 
three  relators  who  received  a  majority  vote 
and  duly  qualified  as  township  highway  com- 
missioners were  entitled  to  their  offices,  al- 
though all  were  Republicans;  the  statute  be- 
ing merely  recommendatory  to  the  voters. 
State  V.  Sanders  (N.  D.)  1918-1033. 

(Annotated) 

7.  The  feasibility  and  practicability  of 
electing  persons  of  different  political  parties 
is  a  matter  for  the  voters,  and  their  judg- 
ment is  final  and  not  reviewable  by  the 
courts.    State  v.  Sanders  (N.  C.)  1918D-1033. 

(Annotated) 


3.  Compensation  and  Expenses. 

a.  In  General. 

8.  Allowance  of  mileage. — A  county  com- 
missioner in  attending  board  meetings  is  en- 
titled to  compute  mileage  for  the  distance 
"necessarily  traveled"  by  the  usual  traveled 
route  from  the  place  of  residence  to  tlie  coun- 
ty seat,  ilarshall  County  v.  Rokke  (Minn.) 
1918D-932.  (Annotated) 

b.  Extra  Duties  Imposed  by  Statute. 

9.  A  public  officer  is  bound  to  perform  the 
duties  of  his  office  for  the  compensation  fixed 
by  law.  This  is  true  as  to  additional  duties 
imposed  upon  the  office  by  the  legislature 
after  he  enters  upon  his  term,  provided  such 
duties  are  germane  to  the  office.  Board  of 
County  Com'rs  v.  Bruce   (Okla.)   1918E-1060. 

(Annotated) 

10.  The  salary  of  county  clerks  being  def- 
initely fixed  by  chapter  19,  sec.  1,  Sess.  Laws 
1905,  and  the  duties  imposed  upon  the  office 
of  county  clerk  under  chapter  19,  Sess.  Laws 
1909,  being  additional,  the  fees  authorized  to 
be  retained  under  section  9,  art.  4,  of  said  act 
could  not  be  retained  by  the  clerks  as  addi- 
tional compensation,  for  to  do  so  would  vi- 
olate section  19,  art.  23,  of  the  constitution, 
prohibiting  the  increase  of  the  emoluments 
of  an  office  during  its  term.  Board  of  Coun- 
ty Com'rs  V.  Bruce   (Okla.)   1918E-1060. 

(Annotated) 

11.  Chapter  19,  sec.  1,  Sess.  Laws  1905, 
put  in  force  in  the  state  of  Oklahoma  by  sec- 
tion 18  of  the  schedule  of  the  constitution, 
fixed  the  salary  of  the  county  clerks  of  the 
various  counties  of  the  state.  The  authority 
conferred  upon  county  clerks  to  issue  hunt- 
ing licenses,  under  the  act  of  the  legislature 
approved  March  8,  1909  (chapter  19,  Sess. 
Laws  1909),  are  additional  duties  conferred 
upon  the  office  of  county  clerk,  and  are  ger- 
mane to  such  office;  and  the  fees  authorized 
to  be  retained  by  clerks  for  issuing  hunting 
licenses  under  .section  9,  art.  4,  of  such  act 
should  be  accounted  for  by  them,  and  they 
are  not  entitled  to  retain  the  same  as  addi- 
tional compensation  for  such  services.  Board 
of  County  Com'rs  v.  Bruce  (Okla.)  1918E- 
1060.  (Annotated) 

c.  Validity  of  Agreement  to  Share  Fees. 

12.  An  agreement  by  one  candidate  to 
withdraw  his  candidacy  just  before  election, 
when  too  late  to  fill  the  vacancy,  in  consid- 
eration of  his  opponent  agreeing  to  appoint 
him  deputy,  and  to  divide  his  fees,  a  fund  to 
secure  performance  of  the  agreement  being 
deposited,  is  void  as  against  public  policy, 
and  the  parties  are  equally  at  fault.  Martin 
V.  Francis   (Ky.)   1918E-289.         (Annotated) 

4.  Accounting. 

13.  Who  may  enforce. — Where  the  county 
board  fixes  the  salaries  of  county  officers  and 
the  statute  requires  such  officers  to  pay  the 
coimty  treasurer  all  fees  received  by  them 
above  the  amounts  so  fixed,  the  officers  are 


PUBLIC  POLICY— QUIETING  TITLE. 


183 


to  account  with  the  county  board,  and  legal 
title  is  in  the  county  which  may  maintain 
suit,  the  distribution  of  separate  funds  be- 
ing a  matter  of  accounting.  Lake  County  v. 
Westerfield   (lU.)    1918E-102. 

14.  Liability  for  interest  on  funds. — Under 
Const,  art.  10,  §  10,  providing  that  the  coun- 
ty board  shall  fix  the  compensation  of  all 
county  officers  with  the  amount  of  necessary 
expenses,  and  all  fees  or  allowances  received 

,  in  excess  of  this  compensation  shall  be  paid 
into  the  county  treasury,  and  Fees  and  Sal- 
aries Act  (Kurd's  Rev.  St.  1913,  c.  53)  §  52, 
containing  similar  provisions,  and  Rev.  St. 
1874,  c.  36,  §  4,  providing  that  the  county 
treasurer  shall  have  custody  of  funds  author- 
ized by  law  to  be  paid  to  him,  and  various 
sections  of  the  Revenue  Act  (Hurd's  Rev.  St. 
1913,  c.  120),  prescribing  the  duties  of  the 
county  treasurer,  as  ex  officio  collector,  and 
creating  an  absolute  liability  of  county  treas- 
urers for  money  in  their  hands  so  as  to  make 
them  insurers  of  the  safety  of  such  money,  a 
coimty  treasurer  is  not  a  bailee  in  the  sense 
of  having  possession  of  money  for  temporary 
purposes  with  a  qualified  property  in  it,  nor 
a  debtor  beyond  the  sense  that  he  owes  an 
obligation  to  pay  over  the  money,  but  is  a 
mere  custodian  of  public  funds,  for  the  safe- 
ty of  Avliicli  he  gives  his  official  bond,  and 
although  he  is  not  required  to  make  the 
money  in  his  hands  earn  interest,  if  the 
funds  do  earn  interest,  he  is  not  entitled  to 
retain  it,  but  must  account  for  it  as  a  pre- 
requisite or  emolument  acquired  by  his  offi- 
cial position.  Lake  County  v.  Westerfield 
(111.)  1918E-102.  (Annotated) 

5.  Official  Bonds. 

15.  Successive  Bonds. — Where  an  officer 
gives  two  or  more  successive  bonds,  liability 
for  maladministration  thereunder  falls  only 
upon  the  sureties  on  the  bond  or  bonds  in 
force  when  the  default  occurred.  A  renewal 
bond  does  not  cover  any  defaults  occurring 
before  its  execution,  unless  by  its  terms  the 
liability  is  so  extended.  Raleigh  County  Ct. 
V.  Cottle  (W.  Va.)   1018D-510. 

16.  Acts  outside  official  duty. — ^Under  Rev. 
Codes,  §  5682,  providing  that  a  surety  can- 
not be  held  beyond  the  express  terms  of  his 
contract,  the  sureties  on  a  county  assessor's 
bond  conditioned  that  he  would  "faithfully 
perform  all  official  duties  now  required  of 
him  by  law,  and  .  .  .  all  .  .  .  duties 
.  .  .  required  by  any  law  to  be  enacted 
subsequent  to  the  execution  of  this  bond," 
are  not  liable  for  moneys  improperly  paid 
and  delivered  to  the  assessor  as  compensa- 
tion for  the  collection  by  liim  of  certain  city 
taxes,  where  the  collection  of  such  taxes  is 
not  imposed  on  him  by  law,  but  reposed  else- 
where under  sections  2684,  3356,  3357.  Butte 
v.  Bennetts  (  Mont.)  1918C-1019. 

(Annotated) 


PUBLIC  SERVICE  COMMISSIONS. 

Power  of  public  service  commission  to  com- 
pel building  of  side  track,  see  Rail- 
roads, 4. 

Regulation  of  rates  of  carriers,  see  Cabbiers, 
1-6. 


PUBLIC  UTILITIES. 

Power  of  municipality  to  operate  public 
utilities,  see  Municipal  Corporations, 
11,  12. 


PUNITIVE  DAMAGES. 

In  action  for  libel,  see  Libel  and  Slander, 
67. 


PUPILS. 

Compelling  admission  to  school  without  fee, 
see  Schools,  1. 


QUANTUM  MERUIT. 

Necessity  of  quantum  meruit  count  in  ac- 
tion of  assumpsit,  see  Assumpsit,  6. 

Recovery  in  action  on  contract,  see  Con- 
tracts, 35. 


QUESTIONS  OF  LAW  ANB  FACT. 

See  Agency,  6;  Admissions  and  Declara- 
tions, 6;  Automobiles,  19;  Beneficial 
Associations,  18;  Brokers,  9-13;  Car- 
riers OF  Passengers,  12,  15-18;  Con- 
version, 4;  Death  by  Wrongful  Act, 
18,  19;  Electricity,  12-17;  Elevators, 
6;  Ferries,  6;  Fire  Insurance,  9;  Fix- 
Tn?ES,  8;  Food,  4;  Homicide,  12;  In- 
dependent Contractors,  7,  8;  Labor 
Combinations,  14;  Libel  and  Slander, 
55,  56;  License,  2;  Ljfe  Insurance,  16, 
17;  MASTB2B  AND  SERVANT,  36,  37;  Neg- 
ligence, 9,  10;  Railroads,  20;  Release 
AND  Discharge,  9;  Telegraphs  and 
Telephones,  6-8,  13;  Theaters  and 
Amusements,  11,  12;  Waters  and 
Watercourses,  4;  Waterworks  and 
Water  Companies,  11;  Weapons,  4,  5. 

Credibility  of  witnesses,  see  Witnesses,  13. 

Evidence  as  to  matter  of  law,  see  Evidence,  8. 

Examination  of  questions  of  fact  on  appeal, 
see  Appeal  and  Error,  43-57. 

In  proceedings  under  Torrens  Act,  see  Re- 
cording Acts,  8. 

Submission  of  question  of  law  to  jury  as 
error,  see  Appeal  and  Error,  85,  86. 

Weight  of  testimony  of  party,  see  Trial,  8,  9. 


PUBLIC    POLICY. 


QUIETING  TITLE. 


Validity  of  foreign  contract  to  arbitrate,  see 
Conflict  of  Laws,  1. 


Injunction     against    execution     sale     which 
would  cloud  title,  see  Injunctions,  5-7. 


184 


ANN.  CAS.  DIGEST  (1918C-1918E). 


1.  Variance  in  description. — A  decree  quiet- 
ing title  will  not  be  disturbed  because  of  a 
slight  variance  in  the  description  therein  and 
in  the  description  of  the  inatruments  on 
which  plaintiff  relied,  especially  where  the 
record  does  not  show  that  the  party  com- 
plaining was  prejudiced  thereby.  Wolfen- 
berger  v.  Hubbard   (Ind.)   1918C-81. 


QUO  AVARRANTO. 

1.  By  whom  brought. — Informationa  in  the 
nature  of  a  quo  warranto  under  our  statute 
are  of  three  classes:  (1)  By  the  attorney 
general  without  leave  of  the  court  at  his  own 
discretion;  (2)  in  the  name  of  the  attorney 
general  by  leave  of  the  court  at  the  instance 
of  any  person  desiring  to  prosecute;  (3)  un- 
der section  4  of  the  act  where  the  question 
is  of  usurpation  or  intrusion  into  a  munic- 
ipal office  or  franchise,  by  a  citizen  who  be- 
lieves himself  lawfully  entitled  to  such 
office  or  franchise.  Bonynge  v.  Frank  (X.  J.) 
1918D-211. 

2.  Joinder  of  relators. — In  quo  warranto 
against  .a  railroad,  though  public  interests 
are  involved,  the  mere  fact  that  a  private 
corporation  and  private  citizens  joined  as 
relators  are  interested  in  the  suit  or  have 
employed  counsel  to  assist  in  the  prosecu- 
tion thereof  is  no  defense.  People  v.  Toledo, 
etc.   R.   Co.    (111.)    1918D-224.      (Annotated) 

3.  Joinder  of  parties  defendant. — An  in- 
formation in  the  nature  of  quo  warranto 
will  lie  jointly  against  several  members  of 
a  board  of  trustees  of  a  cemetery  company. 
Bonynge  v.  Frank   (K  J.)  1918D-211. 

(Annotated) 

4.  An  information  in  the  nature  of  quo 
warranto  to  test  by  what  right  a  railroad 
held  a  right  of  way  which  had  been  trans- 
ferred to  it  by  another  railroad  after  expira- 
tion of  the  time  when  the  original  holder 
could  have  built  upon  such  right  of  way  is 
not  defective  in  joining  the  original  holder 
and  the  transferee  of  the  right  of  wav.  Peo- 
ple V.  Toledo,  etc.  R.  Co.  (111.)  1918D-224. 

(Annotated) 

5.  Determination  of  title  to  office. — Even 
in  the  case  of  information  in  the  nature  of 
a  quo  warranto  as  to  a  municipal  office  or 
franchise,  the  title  of  the  relator  could  not 
be  put  in  issue  prior  to  1895.  Under  the  act 
of  that  year  (Comp.  St.  p.  4214)  it  is  not 
incumbent  on  the  relator  to  put  his  own 
title  in  issue;  but  the  defendant  is  permitted 
to  do  so,  and  the  court  will  then  determine 
which  claimant  if  either  is  entitled  to  the 
office.  Manahan  v.  Watts,  64  X.  J.  L.  465, 
explained.  Bonvnge  v.  Frank  (N.  J.)  1918D- 
211. 

6.  In  case  of  an  information  in  the  nature 
of  quo  warranto  under  section  1  of  the  act 
in  the  name  of  the  attorney  general  by  leave 
of  the  court,  any  person  desiring  to  prosecute 
may  be  relator.  He  need  not  himself  claim 
the  office;  but  leave  of  the  court  will  not  be 
granted,  unless  the  relator  is  acting  in  good 
faith  in  vindication  of  his  own  rights  or 
those  of  the  public  or  a  portion  of  the  public 
Bonynge  v.  Frank  (N.  J.)  1918D-211. 


7.  Judgment  on  demurrer. — A  demurrer  to 
an  information  in  the  nature  of  a  quo  war- 
ranto admits  the  charge  of  the  information 
that  the  denlurrant  intrudes  into  and  unlaw- 
fully holds  and  exercises  the  office,  but 
where  the  information  itself  shows  tliat  a 
demurrant  is  entitled  to  the  office,  the  aver- 
ments are  inconsistent  and  the  demurrant 
is  entitled  to  judgment.  Bonynge  v.  Frank 
(N.  J.)    1918D-211. 

8.  Where  an  information  in  the  nature  of 
quo  warranto  shows  that  a  cemetery  com-* 
pany  had  fifteen  trustees;  that  the*  terms 
of  five  only  had  expired  and  the  terms  of 
ten  had  not  expired;  that  nevertheless  an 
attempt  had  been  made  to  elect  nine  as 
successors  of  the  fifteen,  a  judgment  of  ous- 
ter follows  a  demurrer  to  the  information 
as  to  any  defendant  who  is  brought  into 
court,  and  not  shown  by  the  information  it- 
self to  be  entitled  to  the  office.  Bonynge 
V.  Frank   (N.  J.)    1918D-211. 

9.  Extent  of  relief  granted. — In  quo  war- 
ranto to  test  by  what  right  a  railroad  held 
a  right  of  way  which  it  had  forfeited  by 
failure  to  operate  its  road  within  ten  years 
of  the  grant,  the  judgment  in  favor  of  the 
state  should  merelv  oust  the  defendant  rail- 
road. People  v.  Toledo,  etc.  R.  Co.  (111.) 
1918D-224. 


RACE. 

Reference   by   prosecuting   attorney  to   race 

of  accused,  see  Abgument  and  Conduct 

OF  Counsel,  2. 
Statute  penalizing  denial  of  accommodation 

in  public  place  on  account  of  race,  see 

Civil  Rights,  1,  2. 


RAILROAD  COMMISSIONS. 

Power  of  public  service  commission  to  com- 
pel building  of  side  track,  see  Rail- 
roads, 4. 

Regulation  of  carriers,  see  Caebiers,  1-6. 


RAILROAD    RELIEF   ASSOCIATION. 

See  Masteb  and  Servant,  27. 

RAILROADS. 

1.  Charter  and  Corporate  Bonds,  185. 

2.  Railroad  Commissions,  185. 

3.  Rights,  Powers  and  Duties: 

a.  Crossings,   185. 

b.  Use  of  Bridge  of  Another  Company, 

185. 

4.  Liability  for  Injuries  to  Persons: 

a.  Persons   at   Crossings: 

(1)  Warning  of  Approach  of  Trains, 

186. 

(2)  Contributory  Negligence,  186. 

(3)  Actions,   187. 

b.  Injury  from  Fire,  187. 


RAILEOADS. 


185 


Agi-eement  to  maintain  depot  as  covenant 
running  with  land,  see  Deeds,  10. 

Effect  of  withdrawal  from  settlement  of 
lands  previously  claimed  by  railroad  aa 
indemnity  lands,  see  Pltblic  Laxds,  3. 

Liability  of  owner  of  automobile  for  injury 
at  crossing  to  person  riding  in  automo- 
biles, see  Automobiles,  16,  17. 

Liability  of  receiver  of  railroad  for  tort  com- 
mitt€d  by  railroad  before  appointment, 
see  Recetvebs,  1. 

Power  of  eminent  domain,  see  EMrrfENT  Do- 
MAIX,  3,  6. 

Quo  warranto  against  railroad,  see  Quo 
Wabraxto,  2,  49. 

Kegulation  of  carriers,  see  Cakriers,  1-6. 

Special  damage  to  railroad  from  sale  of  in- 
toxicants as  entitling  it  to  sue  for  in- 
junction to  test  validity  of  license,  see 
Imoxicatixg  Liquors,  1. 

Specific  performance  of  contract  to  maintain 
depot,  see  Specific  Perfobmaxce,  5-13. 

Taxation,  see  Taxation,  7-13. 

1.  Charter  and  Corporate  Bonds. 

1.  Forfeiture  of  charter. — Hurd's  Rev.  St. 
1915-lftl6,  e.  114,  §  26,  providing  for  forfei- 
ture of  a  railroad  charter  if  the  road  is  not 
in  operation  within  ten  years  after  the 
grant,  cannot  be  defeated  by  a  transfer  of 
the  right  of  way  by  the  first  holder  before 
expiration  of  the  ten  year  period  to  another 
railroad.  People  v.  Toledo,  etc.  K.  Co.  (111.) 
1918I>-224. 

2.  It  is  contrary  to.  public  policy  to  permit 
a  railway  company  to  control  a  located  right 
of  way,  without  completing  its  railroad,  for 
a  longer  time  than  the  statutory  period. 
People  V.  Toledo,  etc.  R.  Co.  (111.)  1918D-224. 

3.  Defeat  of  forfeiture  by  transfer. — 
Hurd's  Rev.  St.  1915-1916.  c.  114,  §  19,  cl. 
2,  empowering  railroad  corporations  to  take 
and  hold  voluntary  grants  of  real  estate  and 
to  convey  the  same  when  no  longer  required 
for  the  uses  of  the  railroad,  does  not  author- 
ize a  railroad  which  has  failed  to  construct 
its  line  and  operate  it  within  ten  years  from 
the  grant  to  transfer  its  right  of  way  in 
whole  or  in  material  part  and  thereby  defeat 
Hurd's  Rev.  St.  1915-1916,  c.  114,  §  26,  pro- 
viding for  forfeiture  after  ten  years.  People 
V.  Toledo,  etc.  R.  Co.   (111.)   1918D-224. 

2.  Railroad  Commissions. 

4.  Power  to  compel  building  of  sidetrack. 

— The  state  under  its  police  power  may  em- 
power a  public  service  commission  to  re- 
quire a  railroad  company  to  provide  such 
sidetrack  facilities  to  industries  adjacent  to 
its  tracks  as  shall  be  found  to  he  necessary 
and  reasonable  under  all  the  circumstances, 
and  may  apportion  the  necessary  expense 
therefor  between  the  company  and  the  in- 
dustry in  such  manner  as  shall  be  found  to 
be  reasonable.  Ochs  v.  Chicago,  etc.  R.  Co. 
(Minn.)    1918E-337.  (Annotated) 


3.  Rights,  Powers  and  Duties. 

a.  Crossings. 

5.  Width   of   street   at   crossing. — At   the 

crossing  of  its  track  by  a  street  fifty  feet 
wide  used  by  from  seventy-five  to  ninety 
per  cent  of  the  pedestrians  in  a  town  of 
from  1,000  to  1,500  inhabitants,  the  raihvay 
is  required  to  leave  more  than  the  sixteen 
or  twenty  foot  crossing  used  for  teams,  and 
to  construct  a  footway  across  its  track  from 
the  end  of  the  sidewalk  running  beside  the 
street  to  the  end  of  the  sidewalk  on  the 
opposite  side.  Chicago,  etc.  R.  Co.  v.  Red- 
ding   (Ark.)    1918D-183.  (Annotated) 

b.  Use  of  Bridge  of  Another  Company. 

6.  A  railroad  authorized  by  its  articles  of 
incorporation  to  operate  between  Spokane 
and  Portland  is  entitled  to  use  of  a  bridge 
across  the  Willamette  river  at  Portland,  to 
reach  the  industrial  district  of  the  city  on 
the  other  side  of  the  river  from  the  road's 
passenger  terminals,  under  the  ordinance  of 
the  Port  of  Portland  authorizing  the  bridge, 
which  provided  that  it  should  be  open  to 
the  use  of  any  railroad  other  than  the  one 
which  built  it  on  payment  of  a  reasonable 
compensation.  Oregon -Washington  R.  etc. 
Co.  V.  Spokane,  etc.  R,  Co.  (Ore.)  1918C- 
991. 

7.  A  railroad  having  its  passenger  termi- 
nals on  the  west  bank  of  a  river  and  desirous 
to  use  a  bridge  across  such  river  to  reach  an 
industrial  district  on  the  east  bank,  is  a 
railroad  company  within  the  common  user 
clause  of  the  ordinance  of  the  city  authoriz- 
ing another  railroad  to  build  the  bridge,  al- 
though the  bridge  and  its  approaches  would 
not  be  used  by  the  road's  passenger  trains 
or  for  the  carriage  of  mail  and  express  mat- 
ter, but  only  to  switch  freight  traflfic,  since 
payment  to  the  company  which  built  the 
bridge  of  adequate  compensation  was  a  con- 
dition under  the  ordinance  to  the  exercise 
of  the  right  of  common  user,  so  that  the  pro- 
ceeding for  common  user  was  analogous  to 
a  condemnation  proceeding,  while  in  such  a 
proceeding  a  limited  easement  may  be  con- 
demned. Oregon- Washington  R.  etc.  Co.  v. 
Spokane,  etc.  R.  Co.  (Ore.)  1918C-991. 

8.  Compensation. — ^Where  a  railroad  built 
a  bridge  under  an  ordinance  providing  that 
it   might   be   used   by   other   roads    on    pay- 

.ment  of  compensation,  and,  after  a  second 
road  began  to  use  it  with  the  first,  a  third 
road  desired  its  use  for  freight  traffic  only, 
such  third  road  is  not  chargeable  with  a 
third  of  the  interest  on  the  investment  and 
a  third  of  the  depreciation  charge,  but  is 
chargeable  with  a  substantial  part  of  such 
charges,  such  as  twenty  per  cent  of  the  in- 
terest on  the  road's  investment  in  the  bridge 
and  its  approaches,  eliminating  so  much  of 
the  investment  as  was  chargeable  to  the 
upper  deck  of  the  bridge,  used  for  vehicle 
and  foot  traflBc  only,  also  such  proportion  of 
the  first  road's  expenses  for  maintenance  and 
operation  of  the  railway  portion  of  the j 
bridge  and  taxes  thereon  as  the  third  road"  * 


186 


AXX.  CAS.  DIGEST  (1918C-1018E). 


traffic  bears  to  the  entire  traffic  on  the 
bridge,  and  also  a  like  proportion  on  an  an- 
nual depreciation  charge;  interest  being 
figured  at  the  legal  rate.  Oregon-Washing- 
ton R.  etc.  Co.  V.  Spokane,  etc.  R.  Co.  (Ore.) 
1918C-991. 

9.  Adequacy  of  compensation. — A  railroad 
owning  a  bridge  Avhicli  it  is  required  to  per- 
mit other  railroads  to  use  is  entitled  to  a 
fair  share  of  the  charge  for  operation  and 
maintenance  of  the  bridge  and  of  the  inter- 
est on  the  investment,  regardless  of  functua- 
tions  of  railway  traffic,  so  that  the  fact  that 
the  award  of  arbitrators  fixed  an  adequate 
charge  for  each  car  hauled  across  the  bridge 
does  not  show  that  the  compensation  award- 
ed by  them  was  adequate.  Oregon-Washing- 
ton R.  etc.  Co.  V,  Spokane,  etc.  R.  Co.  (Ore.) 
1918C^991. 

10.  Evidence. — On  proceedings  to  deter- 
mine the  compensation  to  be  paid  by  one 
railroad  for  the  use  of  a  bridge  constructed 
by  another  under  a  city  ordinance  requiring 
it  to  permit  the  user  on  payment  of  com- 
pensation, contracts  fixing  the  terms  under 
which  different  railway  companies  used 
bridges  of  others  which  failed  to  show  a  uni- 
form practice  in  that  respect  are  immaterial. 
Oregon-Washington  R.  etc.  Co.  v.  Spokane, 
etc.    R.   Co.    (Ore.)    1918C-991. 

11.  In  a  suit  to  set  aside  an  award  of  arbi- 
trators of  compensation  to  be  paid  by  one 
railroad  for  the  use  of  a  bridge  constructed 
by  another,  exhibits  showing  the  number  of 
cars  switched  by  the  owner  of  the  bridge  for 
the  other  railroad  during  certain  periods, 
which  included  cars  switched  to  a  point 
across  the  river  at  which  the  using  railroad 
had  no  terminal  and  covered  the  period 
when  it  was  acquiring  its  main  terminal 
across  the  river,  and  which  did  not  include 
freight  carried  by  the  using  railroad  in  less 
than  carload  lots  and  team  freight  which 
could  not  be  switched,  are  of  no  value  in 
showing  the  volume  of  the  traffic  of  the  us- 
ing railroad  across  the  bridge  from  which 
compensation  for  the  use  could  be  deter- 
mined. Oregon-Washington  R.  etc.  Co.  v. 
Spokane,  etc.  R.  Co.   (Ore.)    1918C-991. 

12.  Provision  in  decree  for  modification. — 
In  suit  to  set  aside  an  award  of  arbitrators 
determining  the  compensation  to  wliich  a 
railroad  which  built  a  bridge  was  entitled 
for  its  use  by  another  road  imder  a  common 
user  clause  of  the  city  ordinance  authorizing 
the  building,  the  decree  setting  aside  the 
award  and  correcting  its  errors  should  give 
the  road  which  built  the  bridge  leave  to  ap- 
ply for  a  modification  of  the  compensation, 
in  case  a  road  not  a  party  to  the  suit  ceased 
to  use  it,  and  in  case  one  or  more  additional 
railroads  should  secure  the  right  to  use  it 
the  other  road  should  have  a  similar  right  to 
apply  for  modification.  Oregon-Washington 
R.  etc.  Co.  V.  Spokane,  etc.  R.  Co.  (Ore.) 
1918C-991. 

13.  Presumptions  in  favor  of  award. — The 
presumptions  are  in  favor  of  an  award  by 
the  railroad  commission  sitting  as  a  board 
of  arbitration  to  determine  what  compensa- 
tion a  railroad  which  built  a  bridge  is  enti- 


tled to  for  the  common  use  of  such  bridge  by 
another  road  under  a  common  user  clause  of 
the  city  authorizing  the  building  of  the 
bridge.  Oregon-Washington  R.  etc.  Co.  v. 
Spokane,  etc.  R.  Co.  (Ore.)  1918C-991. 

4.  Liability  for  Injuries  to  Persons. 

a.  Persons  at  Crossing. 

(1)  Warning  of  Approach  of  Trains. 

14.  Where  it  is  shown  that  a  railroad  com- 
pany had  intersected  a  roadway  long  used 
by  the  public,  and  constructed  therein  a  cut 
without  providing  warning  signals  of  any 
sort,  its  acts  in  so  doing  may  amount  to 
negligence,  even  though  the  roadway  is  not 
a  legally  established  highw'ay  or  street. 
Chambers  v.  Minneapolis,  etc.  R.  Co.  (X.  D.) 
1918C-954. 

15.  Excessive  speed  and  failure  to  give 
signals. — Engine  men  in  charge  of  a  loco- 
motive attached  to  a  passenger  train,  who 
cut  off  the  steam  and  apply  the  air  one-quar- 
ter of  a  mile  before  reaching  a  street  crossing 
in  a  small  city,  and  who  suppose  that  an 
electric  warning  bell  stationed  at  the  cross- 
ing is  ringing,  are  not  guilty  of  wantonness, 
although  they  fail  to  ring  the  engine  bell  or 
sound  the  whistle  for  the  crossing,  and  al- 
though they  go  through  the  city  at  the  rat* 
of  forty-five  miles  per  hour.  Jacobs  v.  At- 
chison, etc.  R.  Co.    (Kan.)    1918D-384. 

(2)  Contributory  Negligence. 

16.  Care  required  of  chauffeur. — The  fact 
that  the  chauffeur  at  the  time  of  his  death 
is  carrying  a  passenger  for  hire,  whereby  he 
is  charged  with  the  very  highest  degree  of 
care,  does  not  charge  him  with  such  degree  of 
care  in  going  on  the  track  as  between  him- 
self and  the  defendant  railway  in  such  ac- 
tion for  his  death,  since  the  duty  to  exer- 
cise the  highest  care  obtains  only  as  be- 
tween the  chauffeur  and  his  passenger,  and 
does  not  alter  the  standard  of  care  owing 
by  the  chauffeur  as  between  himself  and  de- 
fendant which  is  simply  that  of  exercising 
reasonable  care  for  his  own  safetv.  South- 
ern R.  Co.  V.  Vaughan    (Va.)    1918D-842. 

17.  Failure  to  see  headlight. — In  an  ac- 
tion to  recover  for  the  death  of  an  automo- 
bile driver  struck  on  a  highway  crossing  by 
defendant's  train  after  dark,  the  fact  that 
defendant's  train  was  equipped  with  a  power- 
ful headlight,  which  brightly  illuminated 
everything  upon  which  it  played,  is  not  suffi- 
cient to  convict  decedent  of  contributory 
negligence  in  going  upon  the  track,  -vvherc 
the  train's  approach  to  the  track  was  through 
a  deep  cut  and  around  a  curve  which  would 
confine  the  light  to  the  walls  of  the  cut 
until  the  train  emerged  clase  to  decedent. 
Southern  R.  Co.  v.  Vaughan  (Va.)  1918D- 
842. 

18.  Automatic  bell  not  ringing. — It  is  such 
negligence  as  will  prevent  a  recovery  for  in- 
juries sustained  for  a  driver  of  an  automo- 
bile to  attempt  to  cross  a  railroad  track  at 
a  grade  crossing  without  looking  or  listen- 
ing for  the  approach  of  a  train,  although  an 


KAPE— RECOKDIXG  ACTS. 


18: 


electric  warning  bell  is  maintained  at  the 
crossing  and  the  bell  is  not  ringing.  Jacobs 
V.  Atchison,   etc.   R.   Co.    (Kan.)    1918D-384. 

(Annotated) 

(3)  Actions. 

19.  Instruction  as  to  maintenance  of  cross- 
ing.— An  instruction  that  a  railway  was 
bound  to  use  reasonable  care  in  the  con- 
struction and  maintenance  of  its  cut  in  a 
reasonably  safe  condition  for  travel  upon 
the  road  which  it  crosses,  and  that  otherwise 
it  is  liable  for  injury  sustained  thereby,  in 
view  of  the  entire  instruction,  is  not  mis- 
leading. Chambers  v.  ^linneapolis  etc.  R. 
Co.  (N.  D.)  1918C-054. 

20.  Question  for  jury — View  obscured. — 
The  defendant  railroad  company,  in  con- 
structing its  railroad,  intersected  a  trail  or 
roadway  which  had  long  been  used  by  the 
public,  constructed  therein  a  deep  cut,  and 
failed  to  guard  the  same.  It  is  held  that 
the  question  of  negligence  was  one  of  fact 
for  the  jury.  Chambers  v.  Minneapolis,  etc. 
R.  Co.  (X.  b.)   1918C-954. 

b.  Injury  from  Fire. 

21.  Applicability  of  statute. — Laws  1912, 
c.  151,  making  a  railroad  corporation  liable 
to  every  person  whose  property  is  injured 
hy  fires  communicated  by  locomotive  engine, 
and  giving  the  corporation  an  insurable 
interest  in  the  property  along  the  route, 
is  limited  to  liability  for  property  destroyed, 
and  does  not  authorize  a  recovery  for  per- 
sonal injuries  or  death  resulting  from  a  fire 
started  by  engine  Avithout  proof  of  negli- 
gence. Yazoo,  etc.  R.  Co.  v.  Washington 
(Miss.)    1918E-813.-  (Annotated) 

22.  Evidence. — In  an  action  against  a  rail- 
road company  for  the  death  of  plaintiff's 
mother  and  the  burning  of  her  house  in 
which  she  was  at  the  time,  evidence  is  held 
not  to  show  that  the  railroad  negligently 
operated  the  engine  which  caused  the  fire 
at  a  speed  of  more  than  six  miles  per  hour 
in  an  incorporated  town,  contrary  to  Code 
1906,  §  4043.  Yazoo,  etc.  R.  Co.*  v.  Wash- 
ington   (Miss.)    1918E-813. 


RAPE. 

1.  SufSciency  of  indictment. — To  aver  that 
a  man  forcibly  and  against  the  will  of  a 
female  did  carnally  know  her,  is  the  same 
as  to  aver  that  he  carnally  knew  her  forcibly 
and  against  her  will.  There  is  no  statute 
or  rule  of  law  prescribing  the  order  in  which 
these  collocations  of  words  shall  precede  and 
follow  one  another  in  an  indictment  or  al- 
legation. State  V.  Heyer  (X.  J.)  1918D- 
284. 

2.  In  an  indictment  or  allegation  for  rape 
it  is  not  necessary  to  charge  that  the  offense 
was  committed  forcibly  and  against  the  will 
of  the  woman.  It  is  sufficient  if  it  charges 
that  the  defendant  feloniously  did  ravish 
and  carnally  know  her.  State  v.  Hever  (X. 
J.)    1018D-284. 


3.  An  allegation  for  rape  (indictment  be- 
ing waived)  examined  and  held,  construing 
its  several  phrases  together  and  reading  them 
in  connection  with  one  another,  that,  in  fact, 
it  charges  the  defendant  with  carnal  knowl- 
edge of  a  certain  woman  forcibly  and  against 
her  will.     State  v.  Heyer  (X.  J.)  1918D-284. 


RATES. 

See  Bexeficial  As.sociations,  6-11. 
Regulation,   see   Carriers,   1-6;    Ixsubaxce, 
9-16. 


REAL    ESTATE    BROKERS. 

See  Brokers,  1-12. 

REAL    PARTY    IN    INTEREST. 

In  action  agaiust  carriers,  see  Carriers  of 
Goods,  15. 

RECAIX. 

Validity  of  statute  providing  for  recall  of 
city  commissioner,  see  Municipajl  Cob- 
POBATIOXS,   7. 

RECEIVERS. 

1.  Liability  for  tort  prior  to  appointment. 
— The  receiver  of  a  railroad  was  not  liable 
for  damages  from  the  road's  tort  committed 
before  his  appointment,  despite  his  being 
given  authority  by  the  appointing  order  of 
the  court  to  defend  suits  against  the  road. 
Bush  V.  Stephens   (Ark.)   1918E-259. 

(Annotated) 

RECEIVING   PROPERTY. 

Receiving  property  of  soldier,  see  Asi£T  axd 
Navy,  8,  9. 

RECIPROCAI.. 

Demurrage,  see  Carriers,  7;   Statutes,  8. 

RECITALS. 

In  deeds,  see  Deeds,  13,  14. 
Sufficiency  of  recital  in  title  of  statute,  sea 
Statutes,  7. 


RECORDING  ACTS. 

Effect  of  failure  to  record  chattel  mortgage, 
see  Chattel  Mortgages,  1. 


188 


ANX  CAS.  DIGEST  (1918C-1918E). 


Failure  to  record  deed  before  suit  commenced 
as  subjecting  property  to  lien  of  lis 
pendens,  see  Lis  Pendens,  6,  7. 

Necessity  for  registration  of  assignment  of 
proceeds  of  building  contract,  see  As- 
signments, 8,  9. 

1.  Instruments  entitled  to  record — Option 
contract. — An  option  contract  for  the  pur- 
chase of  land  is  a  contract  for  an  interest 
in  land,  and,  when  properly  acknowledged, 
is  recordable,  and,  when  recorded,  gives  no- 
tice to  a  subsequent  purchaser  of  the  ven- 
dor. Fields  V.  Vizard  Invest.  Co.  (Ky.) 
1918D-336. 

2.  Torrens  act— Validity.— Laws  1903,  p. 
311  (Torrens  System),  concerning  registra- 
tion of  land  titles,  sections  83,  84,  and  85  of 
which  provide  for  payment  upoon  registra- 
tion of  each  title  of  a  percentage  to  the 
assessed  value  of  the  property  registered 
for  the  purpose  of  providing  a  fund  out  of 
which  shall  be  paid  damages  recovered  in  an 
action  authorized  for  omission,  mistake,  etc, 
of  the  registrar,  examiner,  or  clerk  of  court, 
etc.,  is  not  unconstitutional  on  the  giound 
that  it  engages  the  state  in  the  business  of 
insuring  titles.  White  v.  Ainsworth  (Colo.) 
1918E-179.  (Annotated) 

3.  Laws  1903,  p.  311,  concerning  registra- 
tion of  titles  to  land,  which  provides  for 
personal  service  on  residents  and  service  by 
publication  on  nonresidents  and  unknown 
claimants,  and  allows  time  for  filing  answers, 
trial,  etc.,  is  not  unconstitutional  on  the 
ground  that  it  constitutes  the  taking  of 
property  without  just  compesation.  White 
v.  Ainsworth  (Colo.)  1918E-179.  (Annotated) 

4.  Laws  1903,  p.  311,  concerning  registra- 
tion of  title  to  land,  section  49  of  which  pro- 
vides for  reference  to  the  court  of  all  dis- 
puted questions,  is  not  violative  of  Const, 
art.  3,  vesting  the  powers  of  government  in 
three  distinct  departments,  on  the  gi'ound 
that  it  confers  judicial  powers  on  the  regis- 
trar, since,  although  he  may  exercise  some 
judgment,  the  registration  is  the  act  of  the 
court.  White  v.  Ainsworth  (Colo.)  1918E- 
179.  (Annotated) 

5.  Laws  1903,  p.  311,  concerning  the  reg- 
istration of  titles  to  land,  is  not  violative  of 
Constr.  art.  2,  §  25,  or  the  fourteenth  amend- 
ment to  the  Federal  Constitution,  on  the 
ground  that  it  takes  property  without  due 
process  of  law,  because  section  28  only  al- 
lows 90  days  in  which  judgment  may  be 
vocated  by  a  person  not  actually  served  with 
notice,  since  the  time  within  which  a  judg- 
ment may  be  vacated  and  a  person  allowed 
to  plead  is  a  matter  of  procedure  which  the 
state,  through  its  lawmaking  body,  has  a 
right  to  fix  as  it  sees  fit,  and  the  constitu- 
tional provision  pertaining  to  due  process  of 
law  is  applicable  to  rights,  not  remedies. 
White  V.  Ainsworth    (Colo.)    1918E-179. 

(Annotated) 

6.  Jurisdiction  over  property  of  minors. — 
By  its  express  provisions  Laws  1903,  p.  311, 
concerning  registration  of  title  to  land,  was 
intended  and  does  allow  titles  to  be  quieted 
where  the  allesed  interests  of  minors  is  in- 


volved.    White  v.  Ainsworth  (Colo.)  1918E- 
179. 

7.  Summons. — Where  plaintiflTs'  ancestor 
died  before  service  of  notice  by  publication, 
upon  her  by  name  in  a  suit  under  Laws  1903, 
p.  311,  to  register  title  to  land,  the  summons 
served  upon  plaintiffs  under  the  designation 
of  "all  other  persons  or  parties  unknown," 
etc.,  constitutes  due  process  of  law,  and  is 
BuflScient  to  give  the  court  jurisdiction  under 
the  registration  act.  White  v.  Ainsworth 
(Colo.)    1918E-179.  (Annotated) 

8.  Conclusiveness  of  finding. — In  an  action 
to  cancel  deeds  and  a  decree  confirming  title 
and  ordering  registration  of  land  under  Laws 
1903,  p.  311,  the  question  upon  conflicting 
evidence  whether  the  first  grantee  under  the 
registration  act  was  an  innocent  purchaser 
for  value  relying  upon  a  registered  title  is 
for  the  trial  court,  and  its  finding  cannot 
be  disturbed  on  appeal.  White  v.  Ainsworth 
(Colo.)  1918E-179. 


RECORDS. 

Certification  of  transcript  of  evidence  taken 
before  referee,   see  Refbibees,    1,   2. 

Consideration  of  record  in  another  case  by 
appellate  court,  see  Appeal  and  Ebbob, 
40. 

On  appeal,  see  Appeal  and  Ebbob,  16-23. 


REFEREES. 

Authority  of  master  in  action  to  determine 
rights  of  infant  in  option  contract,  see 
Infants,  6. 

1.  Termination  of  authority  of  referee. — 
A  referee,  under  section  24,  c.  57.  Sess.  Laws 
1907,  may  certify  to  the  transcribed  notes  of 
the  stenographer,  so  that  the  transcript  of 
evidence  may  become  a  part  of  the  record 
without  any  bill  of  exceptions;  but  he  has 
no  power  to  make  up  a  transcript  of  the 
evidence  and  certify  to  the  same  after  he 
has  filed  his  report,  because  he  is  then  func- 
tus officio.  Baca  v.  Unknown  Heirs  of  .Jacin- 
to Palaez   (N.  M.)  1918E-612.       (Annotated) 

2.  When  a  referee  has  performed  the  duty 
imposed  by  the  order  of  his  appointment  he 
is  functus  officio,  and  his  acts  are  no  more 
than  the  acts  of  a  private  individual.  When 
he  has  filed  his  report  and  it  has  become 
a  record  of  the  court,  his  power  over  it  is 
at  an  end  and  his  relation  to  the  case  has 
ceased.  Baca  v.  Unknown  Heirs  of  Jacinto 
Palaez  (N.  M.)  1918C-612.  (Annotated) 


REFERENDUM. 

See  Initiative  and  Referendum. 

REFORMATION    OF    INSTRUMENTS. 

See  Rescission,  Cancellation  and  Refob:- 

MATION. 


REFRESHIXG  MEMORY— RELEVAXCY. 


189 


REFRESHING   MEMORY. 

■See  Witnesses,  9. 

REGITLATION  OF  RATES. 

Of  beneficial  societies,  see  Beneficial  Asso- 

CIATIOXS,   10,  11. 
Of  carriers,  see  Carbiebs,  1-5. 
Validity  of  statute  creating  insurance  board 

and  providing  for  control  of  rates,  see 

Insubance,  8-14. 

REHEARING. 

Rehearing    in    appellate    court,    see    Appeal 
AND  Eebob,  125,  126. 

RELATIONSHIP. 

Services  between  relations,  see  Paeent  AND 
Child,  3. 

REIJI.TORS. 

Joinder  in  mandamus,  see  Mandamus,  3. 
Joinder  in  quo  warranto,  see  Quo  Warranto, 
2. 

RELEASE  AND  DISCHARGE. 

See  Bills  anp  Xotes. 

1.  Effect  of  seal. — ^A  seal  on  a  release  im- 
ports a  consideration,  and  protects  the  in- 
strument from  attack  for  lack  of  considera- 
tion. Dwy  V.  Connecticut  Co.  (Conn.)1918D- 
270. 

2.  Release  of  joint  tortfeasor. — ^A  release 
of  one  joint  tortfeasor  releases  all,  on  the 
theory  that  the  injured  person  has  but  a 
single  claim  and  one  cause  of  action,  and  can 
obtain  but  one  satisfaction  of  the  claim. 
Eidgeway  v.  Savre  Electric  Co.  (Pa.)  1918D- 
1. 

3.  An  unqualified  release  or  discharge  of 
one  or  more  of  several  joint  tortfeasors  given 
for  a  consideration  is  a  release  of  all,  and, 
as  this  riile  rests  on  the  fact  that  the  re- 
leasor is  entitled  to  only  one  satisfaction, 
and  that  an  unqualified  release  or  discharge 
implies  the  receipt  of  such  satisfaction,  the 
release  need  not  be  a  technical  release  under 
seal;  it  being  the  acceptance  of  consideration 
in  satisfaction  for  the  injury  received,  and 
not  the  form  in  which  it  is  evidenced,  that 
is  controlling.  Dwy  v.  Connecticul  Co. 
(Conn.)    1918D-270.  (Annotated) 

4.  What  constitutes  release  of  tortfeasor. 
— In  an  action  against  an  electric  company 
for  damages  for  the  death  of  the  plaintiflPs 
husband,  a  lineman  in  the  employ  of  a 
telephone  company,  killed  by  coming  in  con- 
traet  with  the  electric  company's  defectively 
insulated  wire  strung  on  the  same  pole  and 
close  to  the  telephone  company's  line,  the 
plaintiff's  release  of  her  rights  against  the 


telephone  company  on  the  receipt  of  certain 
insurance  money  from  an  insurance  fund 
payable  independently  of  negligence,  did 
not  preclude  her  action  of  tort  against  the 
electric  company,  although  the  release  in 
terms  covered  any  claim  which  plaintiff 
might  have  against  the  telephone  company. 
Ridgeway  v.  Sayre  Electric  Co.  (Pa.)  1918D- 
1. 

5.  Reservation  of  right  to  sue  other  joint 
tortfeasors. — A  formal  release  under  seal  of 
one  of  several  joint  tortfeasors  which  ex- 
pressly reserved  to  the  releasor  the  right  to 
sue  any  other  parties  does  not  prevent  the 
releasor  from  suing  such  other  parties,  as, 
though  the  seal  furnished  a  conclusive  pre- 
sumption of  full  consideration,  it  furnished 
a  presumption  only  of  full  consideration 
for  the  surrender  or  discharge  which  it  by 
its  terms  made,  and,  having  expressly  nega- 
tived the  receipt  of  full  satisfaction  by  re- 
serving the  right  of  action  against  other 
parties,  there  is  no  presumption  of  full  satis- 
faction for  the  wrong,  and  a  sealed  instru- 
ment, like  any  other  instrument,  must  be 
construed  according  to  its  manifest  intent. 
Dwy  v.  Connecticut  Co.    (Conn.)    1918D-270. 

(Annotated) 

6.  Covenant  not  to  sue  joint  tortfeasor. — 
A  covenant  not  to  sue  one  of  several  joint 
tortfeasors  does  not  operate  as  a  release  of 
the  others  from  liability,  and  cannot  be 
pleaded  in  bar  of  an  action  against  them. 
Dwy  V.  Connecticut  Co.   (Conn.)    1918D-270. 

(Annotated) 

7.  Partial  satisfaction. — Full  satisfaction 
for  an  injury  by  one  of  several  joint  tort- 
feasors bars  a  further  recovery,  and  a  part 
satisfaction  inures  to  the  benefit  of  all  and 
operates  'as  a  payment  pro  tanto.  Dwy  v. 
Connecticut   Co.    (Conn.)    1918D-270. 

(Annotated) 

8.  Parol  evidence. — A  release  under  seal 
cannot  be  modified  by  parol,  or  by  a  writing 
not  under  seal,  or  by  evidence  of  an  unex- 
pressed intent.  Dwy  v.  Connecticut  Co. 
(Conn.)   1918D-270. 

9.  Misrepresentation  in  securing  signature. 
— Although  the  insured  kept  for  three  weeks 
a  draft  to  which  was  attached  a  release  from 
liability,  and  then  cashed  it,  it  cannot  be 
said  that  as  a  matter  of  law  a  representa- 
tion, in  securing  his  signature  thereon,  that 
it  was  a  receipt,  and  not  a  release,  was  not 
a  false,  material  representation.  Rocci  v. 
Massachusetts  Accident  Co.  (Mass.)  19180- 
529. 

10.  Return  of  consideration. — ^Where  the 
insured  received  money,  which  he  alleged  was 
a  part  payment,  and  the  insurer  alleged  was 
full  payment,  for  a  loss,  he  was  not  obliged, 
in  suing  on  the  policy,  to  make  tender  of  the 
amount  received,  but  it  might  be  treated  as 
a  payment  on  account.  Rocci  v.  Massachu- 
setts" Accident  Co.  (Mass.)  19180-529, 


RELEVANCY. 


See  Evidence. 


190 


ANN.  CAS.  DIGEST  (1918C-1018E). 


RELIEF    DEPARTMENT. 

See  Masteb  and  Servant,  27-34. 

RELIGIOUS  INSTITUTIONS. 

Permitting  graduating  exercises  to  be  held 
in  church  as  violating  constitutional  in- 
hibition against  sectarian  instruction  in. 
pubic  schools,  see  Schools,  5,  6. 

1.  Consolidation. — Two  or  more  church 
societies  of  the  Methodist  Episcopal  Church 
of  America  may  be  joined  together  with  a 
single  pastor  as  a  circuit  or  otherwise  and 
have  one  quarterly  conference,  but  that  fact 
does  not  change  the  title  of  the  church  prop- 
erty or  affect  the  financial  interests  of  the 
separate  societies.  Bulirnson  v.  Stoner  (111.) 
1918D-1054.  (Annotated) 

2.  Sale  of  property. — Under  the  law  of  the 
Methodist  Episcopal  Church  of  America  pro- 
viding for  sale  of  church  property  abandoned 
or  no  longer  used  for  the  purposes  originally 
designed,  where  a  church  was  abandoned  from 
about  1901  except  for  occasional  uses  of  the 
church  as  a  convenient  place  for  some  reli- 
gious service  and  the  church  society  was  not 
recognized  by  the  annual  conference  and 
performed  none  of  the  functions  of  a  religi- 
ous society,  sale  of  the  church  property  is 
not  voidable  by  former  trustees  of  the  dis- 
continued church  society,  although  the  pro- 
ceeds, which  by  the  church  law  were  required 
to  be  turned  over  to  the  annual  conference, 
were  appropriated  for  another  purpose. 
Buhrnson  v.  Stoner  (111.)   1918D-1054. 

(Annotated) 

3.  Judicial  review  of  descipline  of  member. 
— The  religious  rights  of  a  church  member 
as  a  communicant,  even  if  she  had  appealed 
to  the  proper  church  authority  and  a  deci- 
sion adverse  to  her  been  given,  are  not  en- 
forceable in  the  civil  courts.  Carter  v.  Pap- 
ineau    (Mass.)    1918C-620.  (Annotated) 

4.  For  a  minister  to  merely  pass  by  with- 
out comment  and  not  administer  commimion 
to  a  church  member  is  not  actionable  as  de- 
famation of  character.  Carter  v.  Papineau 
(Mass.)   1918A-620.  (Annotated) 

5.  Control  of  the  use  of  the  building  for 
religious  services  being,  under  the  laws  of 
the  church,  in  the  minister,  his  temporary  ex- 
clusion of  a  member  therefrom,  by  having 
her  told  that  she  could  not  enter,  in  which 
she  acquiesced,  is  not  reviewable  in  a  civil 
court.  Carter  v.  Papineau  (Mass.)  lfll8E- 
620.  (Annotated) 

6.  LiabUity  for  injurious  utterances. — De- 
fendants, bishops  of  Roman  Catholic  Church, 
issued  a  pastoral  letter  to  all  the  churches 
in  their  dioceses  where  Polish  Catholics  wor- 
shipped wherein  the  communicants  were  for- 
bidden to  read  or  subscribe  to  plaintiff's  Pol- 
ish newspaper  on  pain  of  sin  and  sacrilege. 
The  letter  did  not  require  the  breach  of  any 
contract  with  plaintiff  or  the  withholding  of 
any  advertising  patronage,  and  the  only  re- 
sult of  the  refusal  of  communicants  to  obey 
its  mandate  was  to  lose  their  standing  as 
members  of  the  church.     It  is  held  that  the 


circulation  of  such  letter  gave  rise  to  no 
cause  of  action  in  favor  of  plaintiff  for  loss 
sustained  thereby,  since  the  interdiction  was 
within  the  scope  of  the  chureli's  discipline,  in 
the  enforcement  of  which  any  pecuniary  loss 
to  the  plaintiff  was  damnum  absque  injuria. 
Kurver  Pub.  Co.  v.  Messmer  (Wis.)  19180- 
778.'  (Annotated) 


REMAINDERS    AND    REVERSIONS. 

See    DowEB;    Life    Estate.s;    Tbusts    and 
Tbv-stees;  Wills. 

1.  Executory  devises  not  favored. — An  es- 
tate is  never  allowed  to  inure  by  way  of  ex- 
ecutory devise,  if  it  can  take  effect  as  a  re- 
mainder. Pearson  v.  Easterling  (S.  C.) 
1918D-980. 

2.  Vested  or  contingent — Gift  over  to 
"Heirs." — Under  a  will  devising  to  testator's 
daughter  certain  lands,  to  be  free  from  her 
husband's  debts  or  contracts  'during  the 
term  of  her  natural  life,  and  at  her  death 
that  the  lands  descend  to  the  heirs  of  her 
body  to  each  an  equal  share,  the  children 
of  any  deceased's  child  representing  the  par- 
ent," each  of  the  children  of  the  daughter 
take  a  vested  remainder,  subject  to  be  di- 
vested by  his  dying  before  the  death  of  the 
life  tenant,  leaving  a  child,  who,  in  such 
event,  would  take  by  substitution  in  place 
of  the  deceased  parent;  the  limitation  to 
such  child  of  a  deceased  parent  being  an 
alternative  remainder,  and  not  an  executory 
devise.  Pearson  v.  Easterling  (S.  C.) 
1918D-980.  (Annotated) 

3.  Acceleration. — The  principle  of  accelera- 
tion in  the  vesting  of  a  remainder,  because 
of  the  premature  termination  of  the  pre- 
ceding life  estate,  rests  upon  testamentary 
intention,  and  is  applied  only  when  it  pro- 
motes that  intention.  Scotten  v.  Moore, 
(Del.)    1918C-409. 


REMAND. 

Bt   apellate  court,   see   Appeal  and   Ebbob, 

104,   105. 
By  appellate  court  on  rehearing,  see  Appeat 

and  Erbob,  126. 
Issues  on  trial  after  appeal,  see  Appeal  and 

Erbob,  109. 


REMITTITUR. 

Where    damages    excessive,     see    Damages, 
5,  6. 


REMOVAL  OF  CLOUD. 

See  Quieting  Title. 

RENT. 

See  Landlord  and  Tenant. 


REOPEXIXG  CA.SE— RESCISSIOX,  CAXCELLATIO:^,    ETC.        191 


REOPENING   CASE. 

See  Tbial,  4. 

REPAIRS. 

Duty  of  life  tenant  as  to  repairs,  see  Life 
Estates,  19. 


REPLY. 


See  Pleading,  15. 


REPRESENTATIONS. 

Effect  of  representations  by  insurer,  see  In- 
surance, 21. 

Misrepresentation  as  ground  for  rescission 
of  contract  for  purchase  of  land,  see 
Vendor  and  Purchaser,  4-6. 

Of  insurance  agents,  see  Insurance,  1-4. 

Of  life  insurance  company  as  part  of  con- 
tract, see  Life  Insurance,  4-6. 


REPRESENTATIVE  DEFENDANTS. 

See  Parties  to  Actions,  1,  2. 

REPUTATION. 

Proof  of  good  reputation  to  corroborate  wit- 
ness, see  Witnesses,  16. 

REQUESTS  TO  CHARGE. 

See  Instructions,  8,  9,  11-14. 


RESCISSION,     CANCELLATION     AND 
REFORMATION. 

Cancellation  of  fire  insurance  policy,  see  Fire 
Insurance,  15-17. 

Grounds  for  cancellation  of  automobile  sales 
agency  contract,  see  Agency,  1-3. 

Liability  of  insurance  agent  to  insurer  for 
failure  to  cancel  policv,  see  Insurance, 
5-7. 

Of  contract  for  purchase  of  land,  see  Vendor 
and  Purchaser,  4-7. 

Reformation  of  deed  as  against  bona  fide  pur- 
chaser, see  Vendor  and  Purchaser,  18. 

Rescission  of  contract  by  parties,  see  Con- 
tracts, 21-22. 

Rescission  of  contract  of  sale  of  goods  by 
act  of  parties,  see  Sales,  2,  3.  7. 

Revoking  conditional  assent  to  modification 
of  lease,  see  Landlord  and  Tenant,  5. 

Right  to  revoke  instrument  creating  trust, 
see  Trusts  and  Trustees,  40. 

Setting  aside  judicial  sale,  see  Judicial 
Sales,  4-6. 

Suit  to  cancel  grant  of  public  lands  by  state, 
see  Public  Lands,  10-21. 


Suit  to  set  aside  deed  on  ground  of  undue 
influence  deed  creating  trust,  see  Trusts 
and  Trustees,  39. 

Suit  to  set  aside  tax  title,  see  Taxation,  43. 

1.  Grounds. — Equitj'  has  jurisdiction  to  re- 
form written  instruments  in  but  two  well- 
defined  cases:  (1)  Where  there  is  a  mutual 
mistake,  tliat  is,  where  there  has  been  a 
meeting  of  minds,  an  agreement  actually 
entered  into,  but  the  instrument  in  its 
written  form  does  not  express  what  was 
really  intended  by  the  parties  thereto;  and 
(2)  Avhere  there  has  been  a  mistake  of  one 
party,  accompanied  by  fraud  or  other  in- 
equitable conduct  of  the  remaining  parties. 
Cleveland  v.  Bateman  (N.  Mex.)  1918E-1011. 

2.  Necessity  of  mutuality  of  mistake. — 
To  justify  the  reformation  of  a  contract  on 
the  ground  of  mistake  in  drafting  it,  the 
alleged  mistake  must  be  proved  by  clear 
and  satisfactory  evidence,  and  must  have 
been  mutual  and  common  to  both  parties. 
Robertson  v.  Smith  (Mich.)   1918D-145. 

3.  Mistake  of  law. — A  "mistake  of  la.--'" 
happens  when  a  party  having  full  knowledge 
of  the  facts,  comes  to  an  erroneous  conclu- 
sion as  to  their  legal  effect.  It  is  a  mistaken 
opinion  or  inference  arising  from  an  im- 
perfect or  incorrect  exercise  of  the  judg- 
ment upon  facts  as  they  really  are.  Palm- 
er V.  Cully   (Okla.)    1918E-375. 

4.  "A  mere  mistake  of  law,  not  accom- 
panied with  other  circumstances  demanding 
equitable  relief,  constitutes  no  grounds  for 
rescission,  cancellation,  or  reformation  of  a 
deed  to  lands  based  upon  such  mistake" — 
following  Campbell  v.  Newman,  51  Okla.  121,. 
151  Pac.  602.  Palmer  v.  CuUv  (Okla.) 
1918E-375. 

5.  Effect  of  retention  of  premises  by  grant- 
or.— Evidence  that  the  grantor  remained  in 
possession  of  the  land,  paid  the  taxes  in 
his  own  name,  and  paid  no  rent,  in  the 
absence  of  fraud  or  undue  influence,  does  not 
iustifv  setting  the  deed  aside.  Campbell  v. 
Sigmon  (N.  C.)  1918C-40. 

6.  Reformation  of  void  instrument. — A. 
court  of  equity  will  not  reform  a  void  in- 
strument. Held,  that  the  instrument  whicli 
is  sought  to  be  reformed  in  this  suit  is  not 
void.  Cleveland  v.  Bateman  (N.  Mex.) 
1918E-1011. 

7.  Where  plaintff  for  more  than  a  month 
after  learning  that  an  automobile  purchased 
by  him  was  not  in  running  order,  as  war- 
ranted by  the  vendor,  makes  no  tender  or 
offer  to  return  the  automobile,  other  than  to 
express  a  willingness  or  a  proposal  to  return 
it,  he  cannot  recover  as  on  a  rescission  of  the 
contract.  Collins  v.  Skillings  (Mass.)  19180- 
424.  (Annotated) 

8.  Conditions  precedent. — ^^^lere  relief  by 
way  of  reformation  is  incidental  to  the  main 
purpose  of  a  suit,  it  is  not  necessary  to  al- 
lege a  demand  to  correct  a  mistake  and  a 
refusal  thereof.  Cleveland  v.  Bateman  (N. 
Mex.)   1918E-1011. 

9.  Sufficiency  of  complaint. — (a)  In  a  suit 
for  reformation,  the  complaint  must  make 
it   appear   that   complainant   is   pursuing  his. 


102 


ANN.  CAS.  DIGEST  (1918C-1918E). 


remedy  in  good  time  after  discovery  of  the 
injury;  otherwise,  the  same  is  demurrable. 

(b)  Where  a  complaint  is  silent  as  to  the 
time  of  discovery  of  a  mistake,  it  must  be 
taken  to  have  been  known  to  all  parties  in- 
terested from  the  time  the  instrument  was 
mad^. 

(c)  An  objection  to  the  introduction  of  any 
evidence,  made  at  the  beginning  of  the  trial, 
on  the  ground  that  the  complaint  does  not 
state  a  cause  of  action,  is  in  the  nature  of  a 
demurrer  ore  tenus. 

(d)  A  complaint  and  reply  are  considered 
together  in  determining  a  demurrer  ore  tenus 
diteeted  to  the  complaint,  where  the  reply 
alleges  matters  omitted  by,  and  which  should 
have  been  stated  in  the  complaint,  because 
the  irregularity  of  pleading  improper  matters 
in  the  reply  is  waived  bj'  accepting  it  and  in 
refusing  to  move  to  strike  it  out,  or  other- 
wise attacking  it.  Cleveland  v.  Bateman 
(N.  M.)  1918E-1011. 

10.  The  tenor  of  the  instrument  which  the 
parties  seek  to  have  decreed  by  the  court,  in 
substitution  of  the  agreement  as  reduced  to 
writing,  must  appear  upon  the  face  of  the 
complaint.  Cleveland  v.  Bateman  (N.  Mex.) 
1918E-1011. 

11.  Parties — Grantee  in  undelivered  deed. — 
In  a  suit  to  cancel  deeds  to  school  lands 
for  which  the  grantees  or  their  successors 
have  executed  deeds  to  the  United  States  as 
a  basis  for  lieu  land  selections,  an  allegation 
that  the  United  States  has  and  still  does  re- 
fuse to  accept  the  deeds  of  certain  of  the 
defendants  imports  that  there  had  been  no 
delivery  of  the  deeds,  and,  though  it  appears 
that  the  deeds  have  been  recorded,  demurrers 
on  the  ground  that  the  United  States  is  a 
necessary  party  defendant  are  properly  over- 
ruled, as  a  grantee  under  a  deed  acquires  no 
rights  in  the  absence  of  a  delivery.  State 
V.   Hyde    (Ore.)    1918E-688. 

12.  Evidence. — Evidence  examined  and  held 
insufficient  to  prove  mutual  mistake  or  war- 
rant the  reformation  of  deeds  on  that  ground, 
Robertson   v.    Smith    (Mich.)    1918D-145. 


RESTRAINT    OF   TRADB. 

See  MoxopoLiES. 

RESTTLTING  TRUST. 

See  Tbusts  and  Trustees,  1-13. 


REVENUE. 


See  Taxation. 


REVERSIBLE  ERROR. 

See  Appeal  and  Ebbob. 

REVERSIONS. 

See  Rekaindebs  and  Reversions. 


REVOCATION. 

Of  conditional  assent  to  modification  of  lease, 
see  Landlord  and  Tenant,   5. 

Of  instrument  creating  trust,  see  Tbusts  and 
Tbustees,  40. 

Of  wills,  see  Wills,  11-16. 


RIGHT    TO    FOLLOW    OCCUPATION. 

See  Constitutional  Law,  15. 

RIGHT    OF   WAY. 

Taxation,  see  Taxation,  9. 

ROADW^AY. 

Taxation,  see  Taxation,  8. 


RES    GESTAE. 

Res  gestae  evidence,  see  Admissions  and  Dec- 
labations,  16-20. 


ROBBERY. 

Liability  of  railroad  for  robbery  of  passen- 
ger, see  Cabbiebs  of  PASsiafGEBS,  10. 


RES  IPSA  LOQUITUR. 

Application  of  doctrine  in  action  against 
carrier  of  passengers,  see  Cabbiebs  of 
Passengebs,  7,  8. 

Application  of  doctrine  in  action  against  li- 
censee for  destruction  of  property  by 
fire,  see  License,  2. 

Harmless  error  in  charging  doctrine,  see 
Instbuotions,  10. 


RULE  OF  PROPERTY. 

Decision    establishing    rule    of    property    as 
precedent,  see  Stabe  Decisis,  7. 


RULES. 

Of  carrier,  see  Cabbiebs  of  Passengebs,  3, 
4,  13. 


RES    JUDICATA. 

See  Judgments,  10-17. 

Matters  concluded  by  judgment  of  dismissal 
of  amended  complaint,  see  Pleading,  22. 


RULES  OF  COURT. 

See  Coubts,  3,  4, 

Judicial  notice,  see  Evidence,  3. 


SABBATH— SCHOOLS. 


193 


SABBATH. 

See  Sundays  and  Holidays. 

SAFETY  DEPOSIT. 

Liability  of  lessor  of  safe  deposit  box,  see 
Bailments,  3-6. 

SALES. 

See  Warranty. 

Action  to  rescind  contract  for  purchase  of 
automobile,  see  Eescissiox,  Cancella- 
tion AND  EefORMATION,  7. 

Judicial  sale,  see  Judicial  Sales. 

Parol    evidence    to    vary    sale    contract,    see 

Evidence,  29. 
Sales  of  realty,  see  Vendor  and  Purchaser. 

1.  When  title  passes. — Under  uniform 
sales  act  (Code  Pub.  Civ.  Laws,  art.  83), 
§  43,  providing  that,  unless  otherwise  pro- 
vided goods  remain  at  the  seller's  risk  until 
property  therein  is  transferred,  and  section 
40,  rule  5,  providing  that  if  a  contract  re- 
quires delivery  by  seller  to  buyer,  or  at  a 
particular  place  or  payment  of  freight  or 
cost  of  transformation  to  buyer  or  to  a 
particular  place,  the  property  does  not  pass 
until  the  goods  have  been  delivered  to  the 
buyer  or  reached  the  place  agreed  upon,  where 
a  carload  of  fertilizer,  shipped  under  a  con- 
tract providing  for  delivery  at  the  buyers 
works,  and  that  the  buyer  may  return  it  if 
not  of  standard  quality  after  a  chemical 
analysis,  is  destroyed  by  fire  while  standing 
on  the  buyer's  side  track  before  he  has  had 
a  reasonable  opportunity  to  make  the  analy- 
sis, the  absolute  right  conferred  on  the  buyer, 
title  does  not  pass  until  an  opportunity  for 
mailing  the  tests  is  afforded,  and  the  loss 
is  on  the  seller.  Agri  Mfo-.  Co.  v.  Atlantic 
Fertilizer  Co.    (Md.)    1918D-396. 

(Annotated) 

2.  Duty  on  election  to  rescind. — Under  St. 
1908,  c.  237,  known  as  the  Uniform  Sales 
Act  §  69,  subd.  3,  on  rescission  of  a  con- 
tract to  enable  the  purchaser  to  recover  the 
purchase  price,  the  plaintilf  must  notify  the 
defendant  .within  a  reasonable  time  of  his 
election  to  rescind,  and  must  return  or 
offer  to  return  the  property  in  substantially 
as  good  condition  as  when  received  by  him. 
Collins   V.   Skillings    (Mass.)    1918D-424. 

(Annotated) 

3.  The  word  "offer,"  as  used  in  St.  1908.  e. 
237,  §  69,  subd.  3,  providing  that  the  buyer 
to  rescind  a  sale  must  offer  within  a  reason- 
able time  to  return  the  goods,  is  synonymous 
with  the  word  "tender."  Collins  v.  Skill- 
ings (Mass.)  1918D-424.  (Annotated) 

4.  Failure  of  seller  to  deliver. — Under  Uni- 
form Sales  Act  (Pub.  Acts  1913,  No.  100), 
where  parties  make  a  present  sale  of  wool, 
the  seller,  when  sued  for  failure  to  deliver, 
cannot  stand  on  any  right  to  retain  the 
goods  until  payment  is  made  of  the  entire 
stipulated  price,  where  he  has  tendered  de- 
livery of  wool  which  includes  more  than  the 

Ann.  Cas.  Dig.  1918C-E.— 13. 


stipulated  quantity  of  fine  wool  which  the 
buyer  has  declined  to  accept  and  pay  for  at 
the  full  price,  but  has  offered  to  take  it  and 
to  pay  a  less  price  for  the  fine  wool  in  excess 
of  the  stipulated  quantity.  Powers  v.  Dodg- 
son  (Mich.)  1918D-422.    "  (Annotated) 

5.  Evidence. — In  an  action  by  the  seller 
to  determine  who  shall  bear  the  loss  of  a 
shipment  of  fertilizer  under  a  contract  giv- 
ing the  buyer  the  right  to  have  an  individual 
carload  tested,  evidence  as  to  the  quality 
of  other  shipments  under  the  contract  is 
properly  excluded.  Agri  Mfg.  Co.  v.  At- 
lantic  Fertilizer   Co.    (Md.)    1918D-396. 

6.  Measure  of  damages. — Where  the  seller 
of  goods  to  which  title  has  passed  to  the 
buyer  refuses  to  deliver  them  and  sells 
them  to  another,  the  measure  of  damages  is 
the  difference  between  what  the  buyer  was 
to  pay  and  the  value  of  the  goods  when 
sold  to  another.  Powers  v.  Dodgson  (Mich.) 
1918D-422.  (Annotated) 

7.  Rescission  of  written  contract  by  parol. 
A  written  contract  for  the  sale  of  goods  may 
be  rescinded  by  a  subsequent  parol  agree- 
ment though  the  latter  agreement  is  not 
independently  enforceable  because  not  in 
conformity  with  the  sale  of  goods  act.  Mor- 
ris v.  Barron  (Eng.)   1918C-1197. 

(Annotated) 

8.  Conditional  Sales  —  Destruction  of 
goods.— Under  Pub.  Acts  1907,  c.  212,  §  22, 
providing  that  where  delivery  of  goods  sold 
has  been  made  to  the  buyer  in  pursuance 
of  contract,  and  the  property  therein  has 
been  retained  by  the  seller  merely  to  secure 
performance  of  the  contract,  the  goods  are 
at  the  buyer's  risk  from  the  time  of  de- 
livery, a  buyer  who  purchased  a  piano  under 
a  conditional  sale  contract,  which  contained 
an  agreement  by  him  to  make  certain  pay- 
ments in  instalments  and  to  insure  the  piano 
for  its  full  value,  must  pay  the  purchase 
price,  notwithstanding  the  destruction  of 
the  piano  by  fire,  not  caused  by  his  negli- 
gence, at  a  time  when  it  was  not  insured. 
O'Neill-Adams  Co.  v.  Eklund  (Conn.)  1918D- 
379,  (Annotated) 


SALOONS. 

iSee  Intoxicating  Liquors. 

SCHOOL    LANDS. 

See  Public  Lands. 

SCHOOLS. 

Joinder  of  relators  in  mandamus  to  compel 
admission  of  pupil  to  school  without 
payment  of  fee,  see  Mandamus,  3. 

1.  Compelling  admission  of  pupil  without 
fee. — In  mandamus  by  parents  against  a 
school  teacher  and  a  board  of  education  to 
compel  the  reception  of  the  parents'  chil- 
dren by  a  claimed  public  school  without 
fee,   it   ia   immaterial   whether   the    teacher, 


194 


ANK.  CAS.  DIGEST  (1918C-1918E). 


in  demanding  the  fee  and  excluding  the  chil- 
dren for  nonpayment,  is  acting  by  author- 
ity of  the  board  of  education  of  the  county, 
or  the  local  board  of  the  town,  since  the 
teacher'^  duty  to  conduct  the  school  ac- 
cording to  law  and  the  statutes  can  be 
enforced  by  mandamus  whether  one  board 
or  the  other  had  the  right  to  control  the 
school.     Hughes  v.  Outlaw  (Ala.)  19180-872. 

2.  Teaching  of  music. — ^Under  the  provi- 
sions of  section  7478  of  the  General  Statutes 
of  1909,  it  is  competent  for  a  school  district 
board  to  provide  that  other  branches  shall 
be  taught  than  those  specifically  enumerated 
in  the  section,  and  in  the  discretion  of  the 
board  they  may  provide  for  instruction  in 
music  by  a  qualified  teacher.  Epley  v.  Hall 
(Kan.)    1918D-151.  (Annotated) 

3.  The  uniform  course  of  study  prepared 
by  the  state  board  of  education  for  tlie  com- 
mon schools  of  the  state  for  the  year  1914, 
under  the  authority  of  chapter  272  of  the 
Laws  of  1913,  authorizes  the  teaching  of 
music  in  such  schools.  Epley  v.  Hall  (Kan.) 
19181>-151.  (Annotated) 

4.  It  is  within  the  discretion  of  the  school 
district  boards  to  determine  whether  all  sub- 
jects, including  music,  shall  be  taught  by  a 
single  teacher  or  to  provide  that  music  shall 
be  taught  by  another  teacher,  provided  such 

'  other  possesses  the  qualifications  and  auth- 
ority required  by  the  school  laws.  Epley  v. 
Hall    (Kan.)    1918D-151.  (Annotated) 

5.  Graduating  exercise  in  church — Infringe- 
ment of  religious  freedom. — Where  a  school 
board  permits  parts  of  graduating  exercises 
to  be  held  in  churches,  but  without  religious 
services,  and  at  some  of  the  exercises  allows 

.  clergymen  to  deliver  nonsectarian  prayers,  it 
does  not  violate  Const,  art.  10,  §  3,  prohibit- 
ing sectarian  instruction  in  public  schools. 
State  V.  District  Board  (Wis.)   1918C-584. 

(Annotated) 

6.  Where  the  school  board  holds  parts  of 
graduating  exercises  in  churches,  and  allows 
various  clergymen  to  deliver  nonsectarian 
prayers  and  invocations  at  some  of  the  ex- 
ercises, but  no  compensation  is  paid  for  the 
use  of  the  churches,  or  for  the  prayers,  par- 
ents of  school  children,  though  violently 
opposed  to  the  churches  in  which  the  ex- 
ercises were  held,  are  not  compelled  to  sup- 
port any  minister  or  visit  places  of  worship, 
in  violation  of  Const,  art.  1,  §  18,  declaring 
that  the  right  of  every  noan  to  worship  God 
shall  remain  inviolate,  and  no  man  shall  be 
compelled  to  attend,  erect,  or  support  any 
place  of  worship,  or  maintain  any  minister, 
for  parents  objecting  need  not  attend  such 
exercises.  State  v.  District  Board  (Wis.) 
19180-584.  (Annotated) 


SEAL!". 

EflFect  as  importing  consideration  for  release, 
see  Release  axd  Dischargk,  1,  5. 


SEDUCTION. 

1.  Offer  of  marriage  as  defense. — Under  Cr. 
Code  1912,  §  389,  providing  that  any  male 
above  the  age  of  sixteen  years  who  by 
any  means  of  deception  and  promise  of  mar- 
riage seduces  any  unmarried  woman  shall, 
upon  conviction,  be  deemed  guilty  of  mih.- 
demeanor,  and  that,  if  the  defendant  in  any 
action  shall  contract  marriage  with  sucli 
woman,  either  before  or  after  the  conviction, 
further  proceedings  shall  be  stayed,  an  un- 
accepted offer  of  marriage  does  not  come 
within  the  savings  clause.  State  v.  Whitaker 
(S.    C.)    1918E-467. 

2.  False  promise  of  marriage — Under  such 
section  defendant's  promise  of  marriage,  by 
which  he  deceives  a  woman  and  thereby  in- 
duces her  to  surrender  her  virtue,  without 
intending  to  fulfil  his  promise,  is  punish- 
able. State  V.  Whitaker  (S.  C.)  1918E- 
467. 

3.  Corroboration  of  prosecutrix. — In  a 
prosecution  under  such  section,  evidence  is 
held  to  sufficiently  corroborate  the  testi- 
mony of  the  prosecutrix,  so  that  the  jury 
might  have  reasonably  inferred  that  defend- 
ant did  not  intend  to  marry  her  when  he 
went  away  or  to  fulfil  his  promise  to  marry 
her  when  he  thereby  induced  her  to  consent 
to  intercourse.  State  v.  Whitaker  (S.  C. ) 
1918E-467.  (Annotated) 

4.  Instructions. — A  charge  that,  without 
discussing  the  evidence,  the  presiding  judge 
thought  there  was  some  evidence  as  to  every 
ingredient  of  the  crime,  and  that  the  child 
was  some  corroboration,  and  that  there  was 
some  other  corroboration,  is  not  objection- 
able as  a  charge  on  the  facts.  State  v. 
Whitaker    (S.    C.)    1918E-467. 

5.  Settlement  of  bastardy  proceeding  as 
bar. — An  action  by  the  father  of  a  minor 
daughter  to  recover  damages  for  her  seduc- 
tion is  not  barred  by  her  bastardy  proceed- 
ing against  defendant  under  Code  1906.  c. 
15,  which  was  settled  by  the  paymeiit  of 
.$200  to  her.  Delancey  v.  Byrd  (^Miss.) 
1918D-668.  (Annotated) 


SEEDS. 

Warranty  as  to  germinating  power,  see  Wab- 
BANTT,  1-4. 


SCIENTER. 


SELECTIVE  DRAFT  ACT. 


Necessity  of  knowledge  as  to  falsity  of  repre-      See  Abmy  and  Navt,  1-7. 
sentations,   see  Fbaud,   2. 


SCOPE    OF    EMPLOYMENT. 

Of  chauffeur,  see  Automobiles,  5-11. 


SELF    DEFENSE. 

Belf  defense  in  trial  for  assault  with  intent 
to  kill,  see  Assault,  2. 


SELF-EXECUTING  PROVISIONS— SHOWS. 

SELF-EXECUTING   PROVISIONS.  SEXUAL  INTERCOURSE. 


195 


Of   constitution,    see    CoNSTiTxmoNAL   Law,      gge  Rape;  Seduction. 

19-21.  Refusal    as   ground  for  annulment  of   mar- 

Of  insurance  policy,  see  iNStiBANOE,  48.  riage,  see  Mabbiage,  11-14. 


SELF-SERVING  DECLARATION. 

See  Declabations  and  Admissions.. 
As  to  intent  of  insured  in  taking  bichloride 
tablets,  see  Life  Insurance,  14. 


SENTENCE  AND  PUNISHMENT. 

Excessiveness  of  sentence  in  prosecution  for 
illegal  sale  of  liquor,  see  Intoxicating 
Ljquobs,  20. 


SHERIFFS   AND   CONSTABLES. 

Allowance  as  costs  of  sheriff's  fees  for  serv- 
ing notice  of  appeal,  see  Appeal  and 
Ebbob,  121. 

Sheriff's  sales,  see  Judicial  Sales,  1,  2. 


SHERMAN   ANTI-TRUST    LAW. 

See  Monopolies. 


SEPARATE    PROPERTY. 

Of  wife,  see  Husband  and  Wife,  8-12. 

SERVANT. 

See  Masteb  and  Sebvant. 

SET-OFF    AND   COUNTERCLAIM. 

Necessity  of  pleading  set-off  in  action  on  ac- 
count, see  Accounts,  2. 

Set-off  of  previous  winnings  in  action  to  re- 
cover monev  lost  at  gaming,  see  Gaming, 
7. 

1.  Counterclaim  against  compensation. — 
In  an  action  by  an  agent  for  compensation, 
loss  alleged  to  have  been  sustained  by  the 
principal  from  the  agent's  unfaithful  dis- 
charge of  the  contract  on  which  he  sues  is  a 
proper  subject  of  counterclaim  under  Kirby's 
Dig.  §  6099,  providing  that  a  "counterclaim" 
must  be  a  cause  of  action  arising  out  of  the 
contract  or  transaction  set  forth  in  the  com- 
plaint as  the  foundation  of  plaintiffs  claim, 
or  connected  with  the  subject  of  the  action, 
whether  such  acts  are  considered  as  torts  or 
breaches  of  contract  duties.  Neelv  v.  Wil- 
raore    (Ark.)    1918D-77.  (Annotated) 

SETTLED    CASE. 

Necessity  for  settled  case  to  review  order  dis- 
posing of  motion  for  new  trial,  see  Ap- 
peal AND  Ebbob,  26. 

SETTLEMENT. 

Of  decedent's  estate,  see  Executoes  and  Ad- 

MINISTBATOBS. 


SHIPS    AND   SHIPPINO. 

See  Cabbiebs  of  Goods. 

1.  Provision  for  arbitration. — A  provision 
in  a  charter  party  that  all  disputes  should 
be  settled  by  arbitration,  etc.,  cannot  be  re- 
garded as  providing  for  assessment  of  the 
amount  of  damages  claimed,  leaving  the 
question  of  liability  for  the  courts,  and  so 
is  no  bar  to  an  action  in  court,  even  if  it 
may  support  an  action  for  <breach  of  the 
agreement  to  arbitrate.  Aktieselskabet 
Korn-Og,  etc.  v.  Rederiaktiebolaget  (U.  S.) 
1918E-491. 

2.  Where  no  arbitration  had  actually  been 
begun  and  expenses  incurred,  only  nominal 
damages  can  be  recovered  for  a  breach  of  a 
covenant  in  a  charter  party  providing  for 
arbitration  of  all  disputes.  Aktieselskabet 
Korn-Og,  etc.  v.  Rederiaktiebolaget  (U.  S.) 
1918E-491. 

3.  Provision  for  penalty. — ^A  clause  in  a 
charter  party,  "penalty  for  nonperformance 
of  its  agreement  to  be  proven  damages,  not 
exceeding  estimated  amount  of  freight,"  is  a 
provision  for  a  penalty,  and  cannot  be  con- 
strued to  limit  the  recovery  of  the  char- 
terer for  the  owner's  entire  repudiation  of 
the  charter  and  refusal  to  enter  on  its  per- 
formance. Aktieselskabet  Korn-Og,  etc.  v. 
Rederiaktiebolaget  (U.  S.)   1918E-491. 

4.  In  view  of  a  provision  of  the  charter 
party  for  arbitration  of  disputes  before  ref- 
erees, one  to  be  selected  by  the  captain,  a 
clause  in  the  charter  party  declaring  that  the 
penalty  for  nonperformance  should  not  ex- 
ceed the  estimated  amount  of  freight,  though 
accepted  as  a  limitation  of  liability,  cannot 
be  deemed  applicable  to  the  case  of  an  en- 
tire repudiation  of  the  charter.  Aktiesel- 
skabet Kom-Og,  etc.  v.  Rederiaktiebolaget 
(U.  S.)   1918E-491. 


SEVERABLE  CONTRACT. 

See  Contracts,  24.  , 


SHOWS. 

See  Theaters  and  Amusements. 


196  AlSrX.  CAS.  DIGEST   (1918C-1918E). 

SIDEWALKS.  SPECIAL  ELECTIONS. 


Street  as  including  sidewalk,  see  Stbeets  and 
Highways,  1. 


SIGNAL. 

Failure  to  give  signal  of  approach  of  train, 

see  Railroads,  15,  18. 
Requiring  signal  from  driver  of  automobile, 

see  Automobiles,  2. 


SILENCE. 

Admission  by  silence,  see  Adm:issions  and 
Dbclabatioits,  10-12. 


SLANDER. 

See  Libel  and  Slandeb. 

SMALLPOX. 

Maintenance  of  pesthouse  by  city,  see  Mu- 
nicipal Corporations,  19,  20. 

SOCIAL  CLUB. 

As  exempt  from  taxation,  see  Taxation,  25, 
26. 

SOLDIERS. 

See  Aemy  and  Navy. 

Receiving  property  of  soldier,  see  Abmy  and 
Navy,  8,  9. 

SOLICITING  BUSINESS. 

By  attorney  as  misconduct,  see  Attorneys, 
19,  20. 

SPARE  TIME  WOnVi. 

Compensation  to  insured  spare  time  worker, 
see  Master  and  Servant,  19-25. 

SPECIAL  ASSESSMENT. 

See  Taxation,  44-51. 

Agreement  to  exempt  from  special  assess- 
ment as  covenant  running  with  land,  see 
DEBa)8,  9. 

Apportionment  as  between  life  tenant  and 
remainderman  of  assessment  for  public 
improvements,  see  Life  Estates,  23-25. 

As  incumbrance,  sec  Deeds,  11,  12. 

Payment  from  principal  or  income  of  trust 
estate  of  assessments  for  improvements, 
see  Trusts  and  Trustees,  27. 


See  Elections. 

SPECIAL   LEGISLATION. 

See  Constitutional  Law,  17. 

SPECIFIC  PERFORMANCE. 

Of  agreement  to  arbitrate,  see  Arbitration 

AND  Award,  1. 
Of  award  of  arbitrators,  see  Arbitration  and 

Award,  5,  14,  15. 
Of   contract   to   exercise   power   by   will,   see 

Powers,  1,  2. 

1.  Contract  for  exchange  of  land. — A  con- 
tract of  exchange  of  real  estate  may  be 
specifically  enforced  the  same  as  one  for 
ordinary  sale,  and  the  vendee  may  have  a 
specific  performance  of  that  part  of  the  con- 
tract which  the  vendor  can  perform,  with 
compensation  for  that  part  which  lie  cannot 
perform,  the  same  as  in  ordinary  cases 
of  sales  of  real  estate.  Mundv  v.  Irwin 
(N.  Mex.)   1918D-713.  (Annotated) 

2.  Title  not  good  of  record. — Although  the 
grantor  has  a  good  title  by  reason  of  ad- 
verse possession,  a  contract  of  sale  of  such 
land  cannot  be  specifically  enforced  unless 
good  title  is  shown  of  record,  because  a 
purchaser  does  not  have  to  take  a  title  which 
will  have  to  be  proved  by  parol  evidence. 
Cross  V.  Buskirk-Rutledge  Lumber  Co. 
(Tenn.)    1918D-9S3. 

3.  Slight  deficiency  in  acreage. — Where  the 
the  findings  of  the  court  show,  at  least  in- 
ferentially,  that  the  defendant  bought  by 
the  tract,  rather  than  the  acre,  he  cannot 
defeat  specific  performance  on  account  of 
deficiency  in  area  from  that  mentioned  in 
the  contract  of  sale.  Mundy  v.  Irwin  (X. 
Mex.)    1918D-713. 

4.  Cure  of  uncertainty. — Where  a  vendor 
puts  his  vendee  into  possession  of  real  es- 
tate, an  uncertainty  of  description  in  the 
contract  of  sale,  which  otherwise  might  pre- 
vent specific  performance  of  the  contract, 
is  therebv  cured.  Mundy  v.  Irwin  (X.  ilex.) 
1918D-713. 

5.  Contract  of  railroad  to  maintain  depot. 
— The  contract  or  covenant  of  a  railway  com- 
pany with  a  land  owner,  in  consideration  of 
the  grant  of  a  right  of  way  through  his  lands, 
and  of  land  for  depot  purposes,  to  build  and 
operate  a  depot  on  the  grantor's  land,  not 
specifying  the  length  of  time,  is  not  void 
per  se,  and  may  be  specifically  enforced  so 
long  as  its  performance  by  the  railway  -com- 
pany  will  not  materially  interfere  with  the 
rights  and  interests  of  the  public  to  be  served 
by  such  railway  company;  or  it  has  not  be- 
come otherwise  unduly  burdensome  and  in- 
equitable. Harper  v.  Virginian  R.  Co.  (W. 
Va.)    1918D-1081.  (Annotated) 

6.  Specific  performance  of  such  contract 
will  not  be  denied  where  no  hardship  or  in- 
justice will  result,  and  where  an  action  for 
damages  can  give  the  grantor  no  adequate  re- 


SPEED— STATE  BOAKD  OF  EQUALIZATION. 


197 


lief.     Harper  v.   Virginian   R.   Co.    (W.   Va.) 
1918D-1081.  (Annotated) 

7.  In  such  a  case  the  building  and  opera- 
tion of  a  depot  on  the  land  granted  for  a 
short  time  will  not  amount  to  full  perform- 
ance of  the  grantee's  covenant  so  long  as  the 
rights  of  the  public  to  be  served  by  the 
railway  company  have  not  intervened  and 
continuance  thereof  has  not  become  unjustly 
burdensome  and  inequitable  to  the  railway 
company.  Harper  v.  Virginian  R.  Co.  (W. 
Va.)    1918D-1081. 

8.  Nor  is  such  a  contract  so  indefinite  and 
uncertain  in  its  terms,  and  because  of  the 
continuity  of  the  acts  required  in  specific 
performance,  extending  as  they  necessarily 
do  into  the  future,  as  to  be  unenforceable  in 
equity.  Harper  v.  Virginian  R.  Co.  (W.  Va.) 
1918D-1081. 

9.  But  such  contract  or  covenant  will  be 
enforced  in  a  court  of  equity  so  long  and  so 
long  only  as  it  may  be  done  consistently  with 
the  public  interests  and  the  duties  and  obli- 
gations of  the  railway  company  in  respect 
thereto,  and  it  has  not  become  unduly  bur- 
densome and  oppressive  to  continue  com- 
pliance therewith.  Harper  v.  Virginian  R. 
Co.    (W.  Va.)    1918r)-1081.  (Annotated) 

10.  A  subsequent  deed  between  the  same 
parties,  correcting  errors  or  enlarging  boun- 
daries, made  pursuant  to  the  previous  con- 
tract and  deed,  and  referring  thereto,  but 
omitting  the  covenant,  will  not  be  construed 
as  a  release  of  the  covenant,  when  it  appears 
from  the  terms  of  the  latter  deed  and  from 
the  subsequent  acts  and  conduct  of  the  par- 
ties, that  such  release  was  not  intended. 
Harper  v.  Virginian  R.  Co.  (W.  Va.)  1918D- 
1081. 

11.  In  a  suit  for  specific  performance  of 
such  contract  the  burden  is  upon  the  railway 
company  to  show  that  it  is  no  longer  able 
to  perform  the  covenant  consistently  with  its 
duties  to  the  public  or  that  continuance 
thereof  has  become  burdensome  and  oppres- 
sive, or  otherwise  inequitable.  Harper  v. 
Virginian  R.  Co.  (W.  Va.)  1918D-1081. 

(Annotated) 

12.  In  the  case  at  bar  no  adequate  defense 
was  interposed,  nor  showing  made  entitling 
the  defendant  to  relief  from  specific  perform- 
ance of  its  covenant.  Harper  v.  Virginian 
R.    Co.    (W.    Va.)     1918D-1081. 

(Annotated) 

13.  Where  the  decree  of  specific  perform- 
ance in  such  case  does  not  protect  the  public 
interests  and  the  interest  of  the  railway 
company  in  the  future  ])erformance  of  its 
duti^  and  obligations  to  tlie  public,  it  may 
on  appeal  be  modified  in  that  particular, 
and  as  so  modified,  affirmed.  Harper  v. 
Virginian  R.  Co.  (W.  Va.)  1918D-1081. 


SPEED. 

Evidence  as  to  speed  of  train,  see  EviBEXCE, 

10,  11. 
Excessive  speed  of  train,  see  Railboads,  15. 
R^ulation     of     speed     of     automobile,     see 

Automobiles,  1. 


SPENDTHRIFT  TRUST. 

See  Tbusts  and  Trustees,  14. 

As  assets  in  hands  of  trustee  of  bankruptcy 

of  beneficiary,  see  Bankruptcy,  1. 
Right  of  testator  to  create,  see  Wills,  38. 


SPONTANEOUS  UTTERANCES. 

Admissibility  of  spontaneous  utterances,  see 
Admissions  axd  Declabatio:ns,  18,  19. 


SPORTSMAN. 

Liability  for  accidental  shooting,  see  Weap- 
ons, 1-5 


SPRINKLING    STREETS. 

As  improvement  which  will  support  special 
assessment,  see  Taxation,  45. 


SPUR  TRACKS. 

Authority  to  construct,  see  Franchises,  1; 

Street  Railways,  1,  2. 
Compelling   removal,   see  Stbeet  Raixways, 

3-5. 


STAKEHOLDER. 

Defined,  see  Words  and  Phbases,  10. 

Recovery  from  stakeholder  of  money  deposit- 
ed by  party  to  gambling  contract,  see 
Gaming,  4. 


STAMPS. 

Admissibility  in  prosecution  for  illegal  sale 
of  liquor  of  certified  copy  of  internal 
revenue  tax  stamp,  see  Intoxicating 
LiQUOBS,  12. 


STARE    DECISIS. 

Construction  of  federal  statute  by  federal 
court  as  binding  on  state  court,  see 
Coubts,  5. 

Decision  of  Louisiana  supreme  court  as  prece- 
dent in  court  of  appeals,  see  Coubts,  7. 

Decision  of  state  court  on  question  of  general 
law  as  binding  on  federal  court,  see 
Courts,  6. 

Dictum,  see  Coubts,  8. 

1.  A  decision,  establishing  a  rule  of  prop- 
erty which  had  been  adhered  to  for  several 
centuries,  should  not  be  disturbed  by  the 
courts.    Purvis  v.  Shuman  (111.)  1918D-1175. 


STATE    BOARD    OF   EQUALIZATION. 

See  Taxation,  13,  16-20. 


198 


AI^JS".  CAS.  DIGEST   (1918C-1918E). 


STATE    BOARD    OF   INSURANCE. 

See  INSUBANCE,  8-15. 

STATES. 

See  UNiTEa>  States. 

Application  of  doctrine  of  laches  to  state,  see 

Laches,  1. 
As  party  to  divorce  suit,  see  Divorce,  4,  17. 
Power  to  regulate   interstate  commerce,  see 

Interstate  Commerce,  1-4. 

1.  Claim  against  state. — Under  section  109, 
Rev,  Codes,  no  claim  which  is  not  provided 
for  by  law  may  be  presented,  audited,  set 
off,  or  sued  upon.  Davis  v.  State  (Ida.) 
1918D-911. 

2.  Time  for  presentation. — Section  109, 
Rev.  Codes,  limits  the  time  within  which  a 
claim  against  the  state  may  be  presen1)ed 
to  the  state  board  of  examiners  to  two 
years  after  the  claim  has  accrued.  After 
the  expiration  of  this  period  the  state  board 
of  examiners  is  without  jurisdiction  to  con- 
sider the  claim.  Davis  v.  State  (Ida.) 
1918D-911. 

3.  Method  of  presentation. — Under  the  pro- 
visions of  section  10,  art.  5,  and  section  18, 
art.  .4,  of  our  constitution  the  method  pre- 
scribed for  presenting  and  prosecuting  to  a 
conclusion  the  claims  against  the  state  is 
that  in  the  first  instance  such  claim  must 
be  presented  in  proper  form  to  the  state 
board  of  examiners;  if  rejected  by  said  board, 
the  supreme  court  has  original  jurisdiction 
of  an  action  upon  a  proper  claim  and  may  in 
some  cases  give  a  recommendatory  judgment, 
which  in  turn  must  be  presented  to  the 
legislature  to  be  bv  it  allowed  or  disallowed. 
Davis  V.   State   (Ida.)    1918D-911. 

4.  The  fact  that  under  section  10,  art.  5,'  of 
the  constitution  the  supreme  court  has  origi- 
nal jurisdiction  to  hear  claims  against  the 
state  does  not  relieve  claimants  of  the  obliga- 
tion in  the  first  instance  of  presenting  their 
claims  to  the  state  board  of  examiners. 
Davis  v.  State  (Ida.)  1918D-911. 

5.  Liability  for  negligence  of  servants.— 
States  cannot  be  sued  without  their  consent, 
and  when  by  constitutional  or  statutory  pro- 
visions the  state  has  permitted  itself  to  be 
sued,  such  permission  does  not  render  the 
state  liable  for  the  careless  or  negligent  acts 
of  its  servants,  employees,  or  agents  in  the 
absence  of  any  statute  expressly  fixing  such 
liability  upon  a  state.  Davis  v.  State  (Ida.) 
1918D-911.  (Annotated) 

6.  The  word  "claims,"  as  sued  in  article  5. 
§  10,  of  the  constitution  of  this  state,  does 
not  include  any  claim  for  damages  caused  by 
the  careless  or  negligent  acts  of  the  state's 
servants,  employees,  or  agents,  and  in  the 
absence  of  any  statute  expressly  making  the 
state  liable  in  such  cases  no  such  liability 
exists.     Davis  v.  State  (Ida.)   1918D-911. 

(Annotated) 

7.  Complaint  of  D.  alleged  that  the  state 
of  Idaho  owned  and  operated  an  irrigation 
system;  that  by  reason  of  the  negligence  and 
carelessness  of  the  state  and  its  servants,  em- 


ployees, and  agents  a  ditch  of  said  system 
broke,  causing  large  quantities  of  water  to 
flow  upon,  over  and  across  D.'s  land,  result- 
ing in  the  alleged  damage.  Held  not  to  state 
a  cause  of  action  as  against  the  state,  and 
not  to  disclose  a  state  of  facts  giving  rise 
to  a  "claim"  within  the  meaning  of  article 
6,  §  10,  of  the  constitution.  Davis  v.  State 
(Ida.)    1918D-911,  (Annotated) 

8.  Held  that,  in  the  absence  of  a  statute  or 
constitutional  provision  making  the  state  as 
a  proprietor  liable  for  the  careless  or  negli- 
gent acts  of  its  servants,  employees,  or 
agents,  this  court  is  without  jurisdiction  to 
grant  any  relief  to  plaintiff,  under  the  facts 
alleged  in  plaintiff's  complaint.  Davis  v. 
State    (Ida.)    1918D-911.  (Annotated) 


STATUTE  OF  FRAUDS. 

See  Frauds,  Statute  of. 

STATUTE    OF    LIMITATIONS. 

See  Limitatiox  of  Actions. 

STATUTES. 

1.  Constitutional   Requirements   as   to   Title 

and  Subject,    198. 

2.  Enactment,    199. 

3.  Recitals,  199. 

4.  Effect  of  Partial  Invalidity,  199. 

5.  Construction: 

a.  Words   Given   Their   Ordinary  Mean- 

ing,   199. 

b.  Relative  Words,  199. 

c.  Interpretation    of    Particular    Words 

and  Phrases.  200. 

d.  Practical    Construction,     200. 

e.  Statutes   in   Pari   Materia,  200. 

f.  Curative  Act,  200. 

6.  Amendment  or  Repeal,  200. 

See  CoxsTiTUTioNAL  Law. 

Construction  of  statute  of  limitations,  see 
Limitation  of  Actions,  1. 

Nullification  of  constitution,  see  Constitu- 
tion al  Law,  1. 

Title  of  act  creating  state  insurance  board, 
see  Insurance,  14. 

Title  of  statute  limiting  consecutive  service 
of  public  officers,  see  Public  Officers,  4, 

1.   Constitutional  Requirements  as  to  ^itle 
and   Subject. 

1.  Montana  "war  defense  act." — Laws 
1918  (Ex.  Sess.)  c.  21,  entitled  "An  act 
appropriating  the  sum  of"  $500,000  to  be 
"expended  by  the  Montana  council  of  defense 
in  aiding  and  assisting  the  United  States  in 
carrying  on  and  prosecuting  the  war  now 
existing  between  the  United  States  and  the 
German  and  Austrian  Empires,"  designating 
the  purposes  for  which  such  appropriation 
may  be  expended,  authorizing  the  state  board 
of  examiners  to  issue  bonds  or  warrants  in 


STATUTES. 


199 


excess  of  the  constitutional  limit  of  indebted- 
ness, to  make  rules  and  regulations  governing 
the  expenditure  and  make  temporary  loans, 
etc.,  contains  only  one  subject,  clearly  ex- 
pressed in  its  title,  as  required  bv  Const, 
art.  5,  §  23.  State  v.  Stewart '  (Mont.) 
1918D-1101. 

2.  The  act  is  not  subject  to  the  objection 
that  it  "appropriates  money,  but  such  ap- 
propriation is  not  made  by  a  separate  bill 
expressing  one  subject,"  as  required  bv  Const, 
art.  5,  §  33.  State  y.  Stewart  '(Mont.) 
1918D-1101.  (Annotated) 

3.  Act  relating  to  osteopathy.— Const,  art. 
6,  §  23,  requiring  an  act  to  contain  but  one 
subject,  to  be  clearly  expressed  in  its  title, 
is  not  contravened  by  Laws  1907,  c.  112, 
entitled  an  act  to  amend  Laws  1905,  c.  51, 
§§  8,  12,  relating  to  the  practice  of  osteo- 
pathy, and  defining  what  evidence  shall  be 
deemed  sufficient  to  constitute  the  practice 
of  osteopathy,  defining  practice  of  osteopathy 
80  as  to  include  practice  of  chiropractic,  by 
making  it  applicable  to  every  branch  of  the 
healing  art  bv  use  of  the  hands.  State  v. 
Hopkins    (Mont.)    191SD-956. 

2.  Enactment. 

4.  Vote  by  ayes  and  nays. — Laws  1915, 
p.  781,  establishing  a  minimum  wage  for 
feumles,  originated  in  the  Senate  where  it 
was  duly  passed,  and  on  transmission  to 
the  House,  it  was  amended.  When  the 'bill 
was  returned,  the  Senate  concurred  in  the 
amendments,  and  ordered  the  bill  engrossed, 
but  the  bill  as  engrossed  omitted  the  word 
'•mercantile"  before  "establishments."  The 
vote  on  the  engrossed  bill  was  taken  by  ayes 
and  nays  recorded  in  the  journal,  but  the 
other  votes  adopting  the  amendment  were  not 
so  taken.  It  is  held  that  notwithstanding  the 
error  in  the  bill  as  engrossed,  there  was  a 
compliance  with  Const,  art.  5,  §  21,  declaring 
that  no  bill  shall  become  a  law  unless  on  its 
final  passage  the  vote  be  taken  by  ayes  and 
nays,  for  that  section  does  not  apply  to  a 
vote  of  the  house  which  originated  the  bill 
when  concurring  in  amendments  of  another 
hou:*e,  and  the  Senate  which  originated  the 
bill  had  already  passed  it  in  compliance  with 
the  section.  State  v.  Crowe  (Ark.)  1918D- 
460. 

5.  Proof  of  enactment. — A  duly  enrolled 
bill,  although  publicly  signed  by  the  pre- 
siding officer  of  each  house,  in  the  presence 
of  the  house  over  which  he  presides,  while 
the  same  was  in  session  and  capable  of 
doing  business,  and  afterward  approved  by 
the  governor  and  filed  by  him  with  the 
secretary  of  state,  may  be  impeached  on 
the  ground  that  it  has  not  received  a  con- 
stitutional majority  of  the  members  elect  of 
both  branches  of  the  general  assembly,  and 
upon  this  question  the  legislative  journals 
must  provide  the  appropriate  as  well  as  the 
conclusive  evidence.  Ritzman  v.  Campbell 
(Ohio)     1918D-248.  (Annotated) 

6.  Such  enrolled  bill,  so  authenticated,  is 
conclusive  upon  the  courts  as  to  the  contents 
thereof,  since  the  attestation  of  the  presiding 
officers  of  the  general  assembly  is  a  solemn 


declaration  of  a  co-ordinate  branch  of  the 
state  government  that  the  bill  as  enrolled 
was  duly  enacted  by  the  legislature.  Ritz- 
man V.  Campbell    (Ohio)    1918D-248. 

(Annotated) 

3.  Recitals. 

7.  Title  as  sufficient  recital. — As  the  title 
is  an  essential  part  of  a  statute,  the  recital 
contained  in  the  title  of  a  special  or  local 
statute  that  due  notice  was  given  of  the 
intention  to  apply  for  the  passage  of  the 
act  is  contained  in  the  act,  within  the  re- 
quirement of  article  50  of  the  constitution. 
Gretna  v.  Bailey    (La.)    1918E-566. 

4.  Effect  of  Partial  Invalidity, 

8.  Keciprocal    demurrage   act. — The   provi- . 

sions  of  the  Reciprocal  Demurrage  Act  (sec- 
tions 6159-6167,  Rev.  St.  1913)  relating  to 
intrastate  and  interstate  commerce  are  held 
to  be  separable,  and  the  act,  as  applied  to 
commerce  within  the  state,  is  held  not  to 
violate  the  Constitution  of  the  United  States 
or  the  constitution  of  the  state  of  Nebi-as- 
ka.  Simderland  Bros.  Co.  v.  Missouri  Pac. 
Ry.  Co.    (Neb.)    191SD-1120.    -      (Annotated) 

9.  Invalid  -parts  inseparable. — ^A  statute 
that  is  in  part  unconstitutional  and  invalid 
must  be  decreed  entirely  invalid  if  its  pro- 
visions are  so  interrelated  that  it  cannot 
be  presumed  that  the  legislatiu-e  would  have 
enacted  the  provisions  which  do  not  violate 
the  constitution  independently  of  the  pro- 
visions that  are  found  to  be  unconstitutional 
or  invalid.  That  doctrine  is  particularly  ap- 
plicable to  a  referendum  statute,  because  of 
the  improbability  that  a  majority  of  the 
electors  who  voted  for  its  adoption  or  re- 
jection would  have  voted  for  the  adoption 
of  the  provisions  that  do  not  violate  the 
constitution,  independently  of  the  provisions 
subsequently  decreed  to  be  unconstitutional 
and  invalid.  Gretna  v.  Bailev  (La.)  1918E- 
566. 

10.  While,  if  only  a  portion  or  a  proviso 
of  the  statute  is  unconstitutional,  the  re- 
mainder may  be  upheld,  such  rule  does  not 
apply  where  the  portions  of  the  statute  are 
inseparably  connected  and  dependent  upon 
each  other.  Keith  v.  Lockhart  (N.  0.) 
1918D-916.  P 

5.  Construction, 
a.    Words    Given    Their    Ordinary    Meaning. 

11.  The  presumption  is  that  the  words  of  a 
statute  are  used  in  their  ordinary  significa- 
tion.    Corbin  v.  Baldwin  (Conn.)  1918E-932. 

b.    Relative    Words. 

12.  It  is  a  rule  of  construction  that  rela- 
tive words  must  ordinarily  be  referred  to 
the  next  antecedent  where  the  intent  upon 
the  wliole  instrument  does  not  appear  to  the 
contrarv.  Traverse  v.  Blair  Tp.  (Mich.) 
1918E-81.  • 

13.  It  is  a  rule  of  construction  that  the 
last  antecedent  is  the  last  word  which  can  be 
made  an  antecedent   without   impairing   the 


200 


ANX.  CAS.  DIGEST  (191SC-1918E). 


meaning  of  the  sentence.     Traverse  v.  Blair 
Tp.  (Mich.)  1918E-81. 

c.   Interpretation   of   Particular  Words   and 
Phrases. 

14.  "Aa  now  established." — In  a  statute 
forbidding  the  sale  of  intoxicants  westerly 
of  the  fire  limits  of  a  city  "as  now  estab- 
lished" the  words  "as  now  established"  re- 
fer to  the  time  of  the  enactment  of  the 
statute  and  not  to  the  time  of  its  taking 
effect.  Carr  v.  Washington,  etc.  R.  Co.  (D. 
C.)  1918D-818.  (Annotated) 

d.   Practical   Construction. 

15.  Cannot  defeat  purpose  of  people  and 
legislature. — Although  where  there  is  a 
doubt  concerning  the  meaning  of  a  statute, 
a  long-continued  practical  construction  will 
be  considered  in  determining  the  construc- 
tion to  be  given  it  bj'  the  courts,  where 
the  constitutional  and  statutory  provisions 
plainly  provided  that  all  fees  and  allow- 
ances received  by  county  officers  in  excess 
of  their  lawful  compensation  should  be  paid 
into  the  county  treasury,  the  fact  that  it  is 
customary  for  public  officers  ta  appropriate 
interest  on  public  funds  will  have  no  weight, 
and  cannot  be  permitted  to  defeat  the  pur- 
pose of  the  people  in  adopting  the  con- 
stitution or  the  legislature  in  enacting  the 
law.  Lake  County  v.  Westerfield  (111.) 
1918E-102. 

e.   Statutes   in   Pari   Materia. 

16.  Pub.  Loc.  Laws  1915,  c.  116,  relating  to 
elections  to  determine  whether  the  stock  law 
or  the  fence  law  should  control,  and  chapter 
505,  relating  to  the  taxes  to  be  imposed 
should  a  fence  be  required,  are  in  pari  ma- 
teria, and  must  be  construed  together  as  one 
and  the  same  law,  especially  as  the  later 
statute  refers  to  the  former.  Keith  v.  Lock- 
hart    (1918D-916. 

f.  Curative  Act. 

17.  A  curative  act  or  a  conclusive  evidence 
clause  in  a  statute  is  effective  to  cure  all 
defects  resulting  from  a  failure  to  comply 
with  provisions  which  are  merely  directory  of 
the  mode  of  the  exercise  of  a  power.  People 
V.  Van  Nuys  Lighting  Dist.  (Cal.)  1918D- 
255. 

18.  Defects  and  omissions  which  go  to  the 
jurisdiction  of  the  board  of  county  super- 
visors to  act,  and  which  make  their  action 
absolutely  void,  cannot  be  cured  by  subse- 
quent curative  acts  or  conclusive  evidence 
clauses.  People  v.  Van  Nuys  Lighting  Dist. 
(Cal.)    1918D-255. 

19.  The  attempt  to  validate  by  a  curative 
act,  a  tax  levied  by  a  pretended  corporation 
having  no  legal  authority  over  the  property 
taxed,  would,  if  given  effect,  be  equivalent 
to  the  imposition  of  an  obligation  by  statute 
without  due  process  of  law.  People  v.  Van 
Nuys  Lighting  Dist.   (Cal.)   1918D-255. 


6.  Amendment  or  RepeaL 

80.  Construction. — In  the  construction  of 
amendments  to  the  constitution  or  to  stat- 
utes, the  body  enacting  the  amendment  will 
be  presumed  to  have  had  in  mind  existing 
constitutional  or  statutory  provisions  and 
their  judicial  construction  touching  the  sub- 
ject dealt  with.  American  Woodenware  Mfg. 
Co.    V.    Schorling    (Ohio)    1918D-318. 

STIPUUVTION  OF  FACTS. 

Stipulation  of  facts  on  appeal,  see  Afp£ai> 
AND  Ebbob,  43. 


STOCK   AND    STOCKHOU)ERS. 

See  COBPOBATIONS,  23-42. 

STOCK  DIVIDENDS. 

As  part  of  corpus  of  trust  estate  or  of  in- 
come, see  Tbusts  and  Trustees,  17. 

STOCK  OF  GOODS. 

Mortgage  of,  see  Chattel  Mobtgages,  2-6. 

STORAGE. 

Cold  storage  of  food,  see  Food,  1-4. 
Hegulation  of  storage   of  gasoline,  etc.,   see 
Explosions  and  Explosives,  1-3. 

STORING. 

What  constitutes  storing  of  gasoline  on 
premises,  see  Fire  Insurance,  14. 

STREET   RAILWAYS. 

See  Carriers  of  Passengers. 

Consent  by  city  to  construction  of  double 
spur  track  as  grant  of  additional  fran- 
chise, see  Franchise,  1. 

Contributory  negligence  of  person  struck  by 
automobile  after  alighting  from  car,  see 
Automobiles,  3,  4. 

Street  car  as  vehicle  required  to  give  way  to 
overtaking  vehicle,  see  Streets  and 
Highways,  8. 

1.  Rights  as  to  turnouts. — ^A  spur  track  ta 
a  lot  on  which  a  street  railway  constructed 
car  barns  for  taking  care  of  its  animals,  be- 
fore the  advent  of  motor  power,  and  for 
storage  purposes,  and  the  lot  itself,  is  a 
necessary  turnout  and  appurtenance  under 
a  special  charter,  giving  it  "desired  turn- 
outs and  appurtenances."  Dayton  v.  South 
Covington,  etc.  St.  R.  Co.   (Ky.)   1918E-229. 

2.  Provisions  in  an  ordinance  as  to  the 
rights  as  between  a  city  and  a  street  rail- 
road as  to  the  "tracks"  of  the  latter  apply  to 


STREETS  AXD  HIGHWAYS. 


201 


turnouts;  they  being  necessary  appurtenan- 
ces. Davton  v.  South  Covington,  etc.  St.  R. 
Co.    (Ky.')    1918E-229.  (Annotated) 

3.  Compelling  removal  of  tracks. — In  an 
action  wherein  a  citj'  desires  to  tear  up  and 
abate  certain  spur  tracks  of  a  street  rail- 
way on  the  ground  that  the  street  railway 
had  no  further  use  for  them,  evidence  is 
held  to  show  that  such  spur  tracks  and  cer- 
tain car  barns  were  useful  and  necessary  to 
the  street  railway  company.  Dayton  v. 
South  Covington,  etc.  St.  R.  Co.  (Ky.) 
1918E-229. 

4.  Ky.  St.  §  3490,  subd.  25,  vesting  a  city 
with  the  right  to  exercise  "a  supervisory  con- 
trol over  the  use  of  streets,  and  shall  reg- 
ulate the  speed  of  cars,  signals,  and  fare  on 
street  cars,"  gives  a  city  no  authority  to  re- 
move spur  tracks.  Dayton  v.  South  Coving- 
ton, etc.  St.  R.  Co.   (Ky.)   1917E-229. 

6.  A  city  cannot  remove,  abate,  or  destroy 
spur  tracks  of  street  railways  under  its  right 
of  exercising  its  police  power,  as  a  city  only 
possesses  such  police  power  as  may  be  ex- 
pressly or  bj'  implication  delegated  to  it  by 
the  legislature  through  its  charter,  and  then 
only  on  the  ground  that  it  is  a  nuisance,  and 
the  term  'nuisance"  is  limited  to  such  things 
as  the  common  law  or  the  statute  declares  to 
be  a  nuisance,  and  perhaps  those  things  which 
in  their  nature  may  be  nui.-^ances,  and  a  mu- 
nicipality cannot  declare  what  shall  consti- 
tute a  nuisance.  Davton  v.  South  Covington, 
etc.  St.  R.  Co.  (Ky.)'l918E-229. 

6.  Collision — Negligence  of  street  car  con- 
ductor.— Where  a  street  railway's  conductor 
in  charge  of  a  motor  and  trailer  after  walk- 
ing upon  straight  railroad  tracks  gave  the 
signal  to  the  motorman  to  attempt  the 
crossing,  so  that,  though  the  motor  got  over 
the  tracks,  the  trailer  was  struck  by  a  train, 
the  street  railway  is  negligent,  though  the 
dust  and  noise  of  another  train,  which  the 
motor  had  stopped  to  let  go  by,  hindered 
the  conductor's  seeing  and  hearing  the  ap- 
proaching train.  Memphis  St.  R.  Co.  v.  Cavell 
<Tenn.)    1918C-42.  (Annotated) 


STREETS  AND  HIGHWAYS. 

1.  Definitions  and  General  Consideration,  201. 

2.  Use  of  Streets: 

a.  Regulation  of  Use,    201. 

b.  Law  of  the  Road,   201. 

c.  Injuries.  201. 

3.  Injuries  Arising  from   Defects  in   Street: 

a.  Liability  of  Municipality,  202. 

b.  Right    to    Indemnitv    from    Abutter, 
202. 

1.  Definitions  and  General  Consideration. 

Injuries  at  railroad  crossings,  see  Railroads, 

14-20. 
Regulation  of  operation  of  automobiles,  see 

Automobiles,  1,  2. 

1.  Street     as     including     sidewalk, — The 

streets  of  a  city  or  town  extend  to  and  in- 
clude  that    part   thereof   occupied   and   used 


for  sidewalks.     Chicago,  etc.  R.  Co.  v.  Red- 
ding (Ark.)   1918D-183. 

2.  Use  of  Streets, 

a.  Regulation  of  Use. 

2.  Regulation  of  use  for  profit, — ^Xo  private 
individual  or  corporation  has  a  right  to  use 
the  streets  as  a  common  carrier  for  gain, 
without  consent  of  the  state  upon  such  terms 
as  are  prescribed  by  the  state  or  municipali- 
ty, such  use  being  accorded  as  a  mere  privi- 
lege and  not  as  a  matter  of  right,  Hadfteld 
V.   Lundin    (Wash.)    1918C-942. 

3.  As  to  the  rights  of  citizens  to  use  the 
streets  in  the  ordinary  way,  the  legislative 
power  is  confined  to  regulation,  while  .as  to 
the  use  of  the  streets  for  business  for  private 
gain,  the  power  is  plenary  and  extends  to 
absolute  prohibition.  Hadfield  v.  Lundin 
(Wash.)    1918C-942. 

4.  The  right  of  a  common  carrier  as  such 
to  use  the  streets  is  a  mere  license  or  priv- 
ilege, which  the  legislature  may  prohibit  en- 
tirely witliout  violating  any  provision  of  the 
federal  or  state  constitution.  Hadfield  v. 
Lundin  (Wash.)  1918C-942. 

5.  The  legislature  having  the  power  to 
prohibit  the  use  of  streets  for  carrying  on  a 
business  for  private  gain,  the  reasonableftess 
of  any  regulation  with  reference  thereto  is 
a  legislative  question  pure  and  simple.  Had- 
field v.  Lundin   (Wash.)    1918C-942. 

6.  The  power  to  prohibit  the  use  of  streets 
for  private  business  includes  the  power  to 
regulate,  although  under  given  conditions 
regulation  may  be  tantamount  to  a  prohibi- 
tion.   Hadfield  v.  Lundin  (Wash.)   1918C-942. 

b.  Law  of  the  Road. 

7.  Driving  on  left  side  oi  street. — Driving 
along  the  left-hand  side  of  a  street  is  not. 
of  itself,  negligence;  but  becomes  so,  if  at  all, 
only  because  of  the  surrounding  circum- 
stances, or  because  forbidden  by  law  or 
ordinance,  Harris  v.  Johnson  (Cal.)  1918E- 
560. 

8.  Overtaking  vehicles — Street  car. — ^With 
in  an  ordinance  which  after  providing  that 
vehicles  shall,  on  all  occasions,  travel  on  the 
right-hand  side  of  a  street,  provides  that 
one  in  overtaking  and  passing  another  vehicle 
shall  pass  to  tlie  left  of  such  vehicle,  and  the 
person  in  charge  of  the  vehicle  overtaken 
shall  give  way  to  the  right,  a  street  ear  is 
not  a  vehicle,  as  it  cannot  give  way  to  the 
side.    Harris  v.  Johnson  (Cal.)  1918E-560. 

(Annotated) 

c.     Injuries. 

9.  Evidence  of  negligence. — Driving  on  the 
left-hand  side  of  the  street,  in  violation  of 
ordinance,  is  presumptive  evidence  of  negli- 
gencfe.  which,  if  not  excused  by  the  circuni; 
stances  shown,  is  suflScient  proof  to  support 
recovery  by  one  injured  thereby,  Harris  v. 
Johnson    (Cal.)    1918E-580. 

10.  Permitting  improper  use  of  street. — A 
city  is  liable  for  personal  injuries  resulting 
from  permitting  the  use  of  streets  for  racing 


202 


AISTN.  CAS.  DIGEST  (1918C-1918E). 


and  testing  automobiles;  such  streets  not 
being  reasonably  ^afe  for  ordinary  street  pur- 
poses. Burnett  v.  Greenville  (S.  C.)  1918C- 
363.  (Annotated) 

3.  Injuries  Arising  from  Defects  in  Street, 
a.  Liability    of    Munici|)ality. 

11.  Duty  as  to  Condition  of  Street. — A 
statute  making  a  city  liable  for  injuries  oc- 
curring "through  a  defect  in  any  street"  im- 
poses on  the  city  a  duty  of  keeping  the  street 
in  such  physical  condition  that  it  is  reasona- 
bly safe  for  street  purposes.  Burnett  v. 
Greenville   (S.  C.)  1918C-363. 

12.  Banana  peel  on  sidewalk. — A  petition 
in  an  action  by  a  pedestrian  against  a  munic- 
ipal corporation  for  damages  on  account  of 
personal  injuries  received  from  a  fall  caused 
by  stepping  on  a  banana  peel  on  a  much- 
frequented  sidewalk  in  the  business  section 
of  the  city  was  demurrable  as  failing  to  set 
forth  a  cause  of  action,  where  the  only  alle- 
gatict;)  as  to  omission  of  duty  upon  the  part 
of  the  mimicipality  was  the  general  allega- 
tion that  the  city  negligently  allowed  ob- 
jects of  that  character  to  remain  on  the  side- 
walks of  the  city,  and  the  only  allegation  as 
to  .notice  to  the  city  of  the  presence  of  the 
object  on  the  sidewalk  was  that  from  the 
color  of  the  particular  banana  peel  it  ap- 
peared to  have  been  discarded  from  twenty- 
four  to  twenty- eight  hours,  and  that  banana 
peels  were  frequently  to  be  found  on  the 
sidewalks  of  the  city,  and  the  particular  peel 
gave  evidence  by  its  partially  dried  and 
browned  condition  of  having  been  on  the  side- 
walk for  some  time.  Boney  v.  Dublin  (Ga.) 
1918E-176.  (Annotated) 

13.  Injury  from  picking  up  electric  wire. — 
In  an  administratrix's  actions  against  city 
and  electric  companies  for  death  of  her  adopt- 
ed son  from  electric  shock  when  he  picked  up 
a  broken  wire  lying  in  the  grass  beside  the 
sidewalk,  whether  the  accident  occurred  with- 
in the  limits  of  the  highway  or  outside  of  it 
is  held  to  be  for  the  jury.  Boutlier  v.  Mai- 
den   (Mass.)    1918C-910. 

14.  In  such  action  evidence  is  held  to  be 
sufficient  to  justify  finding  that  plaintiff's  in- 
testate was  a  traveler  on  the  highway.  Bout- 
lier v.  Maiden  (Mass.)   19180-910. 

15.  In  such  action,  where  the  first  and 
second  counts  of  the  declaration  allege  that 
decedent  was  a  traveler  on  the  highway,  and 
was  injured  by  reason  of  a  defect  and  want 
of  repair  in  the  way,  but  there  is  nothing  to 
show  when  the  wire  was  broken,  or  how  long 
it  had  been  hanging  in  the  street,  and  there 
is  no  evidence  that  the  city  knew,  or  by  the 
exercise  of  proper  care  and  •  diligence  might 
have  had  reasonable  notice,  of  a  defect  in  the 
way,  if  such  existed,  verdict  is  rightly  ordered 
for  the  city.  Boutlier  v.  Maiden  (Mass.) 
1918C-910. 

b.  Right  to  Indemnity  from  Abutter. 

le.  A  judgment  ag&inst  a  city  for  injuries 
to  a  pedestrian  from  the  icy  condition  of  a 
sidewalk,  in  an  action  in  which  the  property 
owner    was   notified    to  defend,   is   not   con- 


clusive against  the  owner  as  to  any  defense 
which,  while  relevant  to  her,  could  not  have 
been  introduced  in  the  action  against  the 
city.  Philadelphia  v.  BergdoU  (Pa.)  1918C- 
1141. 

17.  A  city  is  not  entitled  to  recover  of  a 
property  owner  damages  paid  to  a  pedestrian 
for  injuries  resulting  from  the  icy  condition 
of  the  sidewalk  in  front  of  the  owner's  prop- 
erty, where  the  judgment  against  the  city 
was  based  on  evidence  of  constructive  notice 
of  the  condition  of  the  walk  for  a  period  of 
ten  days,  while  at  the  time  of  the  accident 
the  premises  were  occupied  by  a  tenant,  and 
no  actual  notice  of  the  condition  of  the  side- 
walk was  brought  to  the  owner,  and  she  had 
not  visited  the  house  or  been  in  its  neighbor- 
hood during  the  continuance  of  the  nuisance. 
Philadelphia  v.  Bergdoll  (Pa.)  19180-1141. 

(Annotated) 


STRIKES. 

See  Labob  Combinations,  1,  9. 


SUBROGATION. 

Assignment  of  moneys  due  imder  building 
contract  as  prior  to  right  of  subroga- 
tion of  surety,  see,  Assignments,  10,  14. 

1.  Nature  of  right. — Subrogation  is  not  a 
matter  of  strict  right,  nor  does  it  neces- 
sarily rest  on  contract,  but  is  purely  equita- 
ble in  its  nature;  and,  since  it  is  a  creature 
of  equity,  it  will  not  be  enforced  where  it 
will  work  injustice  to  the  rights  of  those 
having  equal  equities.  Wasco  County  v.  New 
England  Equitable  Ins.  Oo.  (Ore.)  1918E-656. 

2.  Compensated  surety. — A  paid  surety 
may  claim  benefits  of  subrogation.  Wasco 
County  V.  New  England  Ins.  Co.  (Ore.) 
1918E-656.  (Annotated) 

3.  Surety  on  contractor's  bond. — ^As  be- 
tween a  contractor's  surety,  the  contractor, 
and  a  county  employing  a  contractor,  the 
surety  paying  claims  against  the  contractor 
in  default  may  claim  the  benefits  of  sub- 
rogation, because  it  has  paid  debts  due  to 
third  persons  acting  on  compulsion  and  not 
as  a  mere  volunteer.  Wasco  County  v.  New 
England  Equitable  Ins.  Oo.  (Ore.)  1918E-656. 

4.  Subrogation  as  against  coparties. — A 
railroad  which,  though  aggrieved  by  only  a 
part  of  a  judgment,  by  appealing  from  the 
whole  thereof  on  affirmance  has  judgment 
directed  against  it  on  its  supersedeas  "bdnd  for 
the  entire  judgment  appealed  from  is  entitled 
to  be  subrogated,  upon  payment  of  the  judg- 
ment, to  the  rights  of  plaintiff  in  his  judg- 
ment against  the  other  defendants.  Simmons 
V.  Northern  Pac.  R.  Oo.  (Wash.)  19180-1384. 


SUBSCRIPTIONS. 

To  corporate  stock,  see  Oobpoeations,  23-34. 
In  voting  contest,  see  Fbavd,  10-13. 


SUBTEERANEAX  WATEES— SURVIVORSHIP.  203 

SUBTERRAIfEAN  WATERS.  SUPPLEMENTAL  BILL. 

See  Waters  and  Wateecoubses.  See  Equitt,  3. 


SUCCESSION  TAXES. 

See  Taxation,  52-58. 

SUICIDE. 

Admissions  of  insured  to  show  suicide,  M« 
Admissions  and  Declabationb,  5,  6. 

SUIT   MONET. 

See  Alimony  and  Suit  Money. 

SUMMARY    JUDGMENT. 

Against  sureties  on  appeal  bond,  see  AppeaIi 
AND  Errob,  115-120. 

Against  surety  on  injunction  bond,  see  In- 
junctions, 22,  23. 

SUNDAYS   AND   HOLIDAYS. 

1.  Validity  of  Sunday  laws. — Sunday  or- 
dinances are  generallj'  upheld  on  the  ground 
that  the  observance  of  Sunday  is  promotive 
of  the  moral  and  physical  well-being  of  soci- 
ety; and  such  ordinances  are  a  valid  exercise" 
of  the  police  power,  and  constitutional.  State 
V.  Davis    (N.  C.)    1918E-1168. 

2.  A  town  whose  charter  specifically  au- 
thorizes its  board  of  aldermen  to  make  reg- 
ulations to  cause  tlie  due  observance  of  Sun- 
day, if  not  thereby  authorized  to  enact 
Sunday  regulations,  was  authorized  thereto 
by  Eevisal  1905,  §  2923.  empowering  cities 
and  towns  to  make  ordinances,  rules,  and 
regulations  for  the  better  government  of  the 
town  as  they  mav  deem  best.  State  v.  Davis 
(K  C.)   1918E-li68. 

3.  Regulations  directed  to  particular  busi- 
ness.— An  ordinance  of  a  town,  forbidding  any 
dnig  store  to  sell  any  merchandise  on  Sun- 
day, but  not  applying  to  the  filling  of  pre- 
scriptions and  the  selling  of  any  article  for 
the  relief  of  the  sick,  under  a  penalty  of  $25 
for  every  offense,  and  an  ordinance  forbidding 
any  restaurant  or  lunch  stand  to  open  its 
doors  on  Sunday  for  the  sale  of  any  article 
whatever,  except  those  conducted  wholly  as 
a  restaurant,  lunch  stand,. etc.,  excepting  res- 
taurant, etc.,  carried  on  in  connection  with  a 
grocery  store,  afterwards  amended  to  include 
vendors  of  soda  water  or  any  other  place  of 
business,  under  a  penalty  of  $5  for  each  of- 
fense, are  not  an  unlawful  discrimination  be- 
tween persons  engaged  in  the  same  business, 
as  the  ordinances  dealt  with  distinct  and  sev- 
erable occupations,  especially  in  the  absence 
of  any  finding  that  those  engaged  in  them 
came  into  competition  with  each  other.  State 
V.  Davis  (N.  C.)  191 8E  1168.        (Annotated) 


SURETYSHIP. 

Bar  of  action  against  surety  as  affecting  suit 
for  contribution  by  cosurety,  see  Limi- 
tation OF  Actions,  4. 

Liability  of  surety  on  building  contract,  see 
Contracts,  33,  34. 

Parol  evidence  to  show  relation  of  parties 
to  obligation,  see  E^^DENCE,  35. 

Right  of  surety  to  subrogation,  see  Subroga- 
tion, 2,  3. 

1.  Consideration. — To  support  a  contract 
of  suretyship,  it  is  not  necessary  that  any 
consideration  pass  directly  to  the  surety,  but 
a  consideration  moving  to  the  principal  alone 
is  suflficient.  Bonner  Oil  Ck).  v.  Gaines  (Tex.) 
1918C-574. 

2.  Extension  of  time  as  consideration. — An 
extension  of  time  for  the  payment  of  a  debt 
is  sufficient  consideration  for  a  contract  of 
suretyship.  Bonner  Oil  Co.  v.  Gaines  (Tex.) 
1918C-574.  (Annotated) 

3.  Where  a  corporation  owes  a  debt  upon 
open  account  which  is  due  and  unpaid,  an 
extension  of  time  for  payment  thereof  upon 
execution  of  notes  by  the  corporation  and  its 
president  individually  is  a  suflBcient  consid- 
eration to  support  the  suretyship  of  the 
president,  though  he  becomes  a  surety  vol- 
untary and  not  on  the  request  of  the  cor- 
poration. Bonner  Oil  Co.  v.  Gaines  (Tex.) 
1918C-574. 

4.  Plea  of  non  est  factimi — Proof  of  con- 
ditional signing. — ^Under"  the  plea  of  non  est 
factum,  in  an  action  upon  the  bond  of  a 
sheriff,  the  sureties  sued  may,  to  escape  lia- 
bility, prove,  by  oral  or  documentary  evi- 
dence, that  the  county  court  had  notice  that 
the  bond  was  not  to  become  operative  by  ac- 
ceptance unless  and  until  executed  by  other 
persons  as  sureties.  Raleigh  County  Ct.  v. 
Cottle    (W.   Va.)    1918D-510. 

5.  If  such  condition  is  violated  by  a  pre- 
mature acceptance,  with  knowledge  or  notice 
of  the  condition  on  the  part  of  the  obligee, 
it  cannot  recover  on  the  instrument.  Raleigh 
County  Ct.  v.  Cottle  (W.  Va.)  1918D-510. 

(Annotated) 

6.  Where  matters  set  up  in  a  special  plea 
in  such  action  are  provable  under  the  gen- 
eral issue  entered,  the  plea  is  properly  re- 
jected. Raleigh  County  Ct.  v.  Cottle  (W.  Va.) 
1918D-510. 


SURGEONS. 

See  Phtsicians  and  Subgeows. 

SURVIVORSHIP. 

Creating    presumption    of    survivorship    by 
will,  see  Wnxs,  39.  40,  48. 


204 


AN^\  CAS.  DIGEST  (1918C-1D18E). 


TAXATION. 

1.  Power  of  Taxation,  204. 

2.  Assessment  and  Valuation: 

a.  Assessors,  204. 

b.  Valuation  of  Property,  204. 

c.  Description  of  Property,    205. 

d.  Proceedings  to  Enforce,  205. 

e.  Review  by  Boards  of  Equalization, 
205. 

3.  Exemptions: 

a.  Construction   of   Statutes: 

(1)  In   General,    206. 

(2)  Property  Used  for  Education- 

al, Charitable   or   Religious 
Purposes,  206. 

(3)  Public  Utilities,   206. 

b.  Power  of  Municipality,  206. 

4.  Collection  of  Taxes,  207. 

5.  Lien  for  Taxes,  207. 

6.  Remedy  for  Erroneous  Assessment  or 
Taxation,  207. 

7.  Tax  Sales  and  Deeds: 

a.  Compliance  with  Law,  207. 

b.  Deeds,  207. 

c.  Action  to  Quiet  Title  or  Set  Aside 

Sale,  207. 

8.  Special  Assessments. 

a.  Nature  and  Exercise  of  Power,  207. 

b.  Nature  of  Improvement,  208. 

c.  Property   Subject   and   Exemptions, 
208. 
d.  Persons  Entitled  to  Object,  208. 

e.  Mode  of  Asse><sment,   208. 

f.  Proceedings,    208. 

9.  Succession  Taxes,  208. 
10.  Income  Tax,   209. 

Covenant  to  exempt  from  assessment  as  one 
running  with  land,  see  Deeds,  9, 

Discretion  to  refuse  enforcement  by  man- 
damus of  invalid  assessment,  see  Man- 
damus, 1. 

Duty  to  pay  taxes  as  between  life  tenant  and 
remainderman,  see  Life  Estates,  5,  20- 
25. 

Payment  from  principal  or  income  of  trust 
estates,  see  Trusts  and  Trustees,  23- 
25,  27,  28. 

Payment  of  taxes  on  annuities,  see  Annui- 
ties, 3,  4. 

Special  assessment  as  incumbrance,  see 
Deeds,  11,  12. 

Valuation  for  taxation  as  evidence  of  value 
in  condemnation  proceeding,  see  Emi- 
nent Domain,  13. 

1.  Power  of  Taxation. 

1.  Equality. — The  public  burdens  of  taxa- 
tion must  be  equally  imposed  upon  every 
citizen.  Walker  v.  Richmond  (Ky.)  1918E- 
1084. 

2.  Power  of  Municipality. — ^While  the  legis- 
lature may  confer  the  taxing  power  upon 
municipalities,  it  cannot  confer  any  greater 
power  than  the  state  itself  possesses,  and 
must  observe  the  restrictions  and  limitations 
of  the  constitution  prohibiting  any  exemption 
from  taxation  save  in  consideration  of  pub- 


lic service,  unless  it  be  of  a  benevonnt  or 
charitable  character.  Walker  v.  Richmond 
(Ky.)   1918E-1084.  (Annotated) 

3.  Taxing  one  district  for  benefit  of  an- 
other.— Ordinarily  the  property  of  one  dis- 
trict cannot  be  taxed  if  it  clearly  appears 
that  the  tax  is  for  the  exclusive  benefit  of 
another  district.  Keith  v.  Lockhart  (N.  0.) 
1918D-916. 

4.  What  constitutes  "necessary  expense." — 
A  county  fence  of  the  character  retjuired  by 
the  fence  law  is  not  a  '"necessary  expense" 
within  Const,  art.  7,  §  7,  prohibiting  counties 
from  contracting  debts  or  levying  taxes  ex- 
cept for  'necessary  expenses;"  such  term  ap- 
plying to  ordinary  and  usual  expenditures 
reasonably  required  by  the  functions  of  the 
county.  Keith  v.  Lockhart  (N.  C.)  1918D- 
916.  (Annotated) 

2.  Assessment  and  Valuation. 

a.  Assessors. 

5.  Nature  of  duties. — The  quasi  judicial 
duties  of  an  assessor  end  when  he  has  com- 
pleted the  assessment  and  suijmitted  the  roll 
under  R.  S.  1908,  §  5658,  and  transmitted  his 
abstract  of  assessment  to  the  state  commis- 
sion under  Sess.  Laws  1911,  p.  622,  §  30,  and 
he  cannot  thereafter  question  or  change  what 
is  subsequently  done  by  other  boards  acting 
within  their  jurisdiction;  his  duties  then 
being  altogether  ministerial.  People  v. 
Pitcher   (Colo.)    1918D-1185. 

b.  Valuation  of  Property. 

6.  Patented  mines. — Under  Const,  art.  10, 
§  1,  as  amended  in  1906  (see  St.  1907,  p.  501), 
to  provide  that,  as  to  unpatented  mines  and 
mining  claims,  the  proceeds  alone  should  be 
assessed  and  taxed,  and  that  patented  claims 
shall  be  assessed  at  not  less  than  $500,  ex- 
cept when  $100  in  labor  has  been  actually 
performed  thereon  during  the  year,  in  addi- 
tion to  the  tax  upon  the  net  proceeds,  a 
patented  mine  cannot  be  assessed  at  Ifiss 
than  $500  if  no  labor  has  been  performed, 
and  a  patented  mine  on  which  labor  has  been 
performed  is  exempt  from  taxation  except 
on  the  proceeds  thereof,  and,  in  the  absence 
of  any  saving  clause,  an  assessment  at  $10 
per  acre  under  St.  1905,  c.  58,  pursuant  to 
article  10,  §  1,  prior  to  the  amendment  of 
1906  was  invalid.  Wren  v.  Dixon  (Nev.) 
1918D-1064. 

7.  Property  of  railroad. — A  railroad,  for 
the  purpose  of  assessment  and  taxation,  is 
considered  as  an  entity,  and  includes  all 
property  that  is  held  and  used  principally  in 
the  operation  of  the  road  and  carrying  on 
the  business  of  transportation.  Chicago, 
etc.  R.  Co.  V.  Box  Butte  County  (Neb.) 
1918D-1037. 

8.  Assessment  of  "roadway." — The  term 
"roadway"  as  used  in  a  statute  providing 
that  the  roadway  of  a  railroad  company 
shall  be  taxed  on  a  mileage  basis,  means  so 
much  of  the  right  of  way  as  is  used  for  the 
laying  of  the  main  tracks  and  does  not  in- 
clude sidings  and  roundhouse  grounds.    Grand 


TAXATION. 


205 


Trunk  Pac.  R.  Co.  v.  Calgary  (Can.)  1918D- 
724.  (Annotated) 

9.  Assessment  of  "right  of  way." — The  ex- 
pression "right  of  way  and  depot  grounds" 
in  section  6375,  Rev.  St.  1913,  was  not  in- 
tended to  exclude  from  the  jurisdiction  of 
the  state  board  in  assessing  railroads  all 
property  situated  more  than  100  feet  from 
the  center  or  the  main  track  of  the  road. 
Chicago,  etc.  R.  Co.  v.  Box  Butte  County 
(Xeb.)    1918D-1037.  (Annotated) 

10.  Property  of  railroad  assessed  locally. 
— Eleven  miles  of  fence  on  leased  land  not 
assessed  by  the  state  board  may  also  be  lo- 
cally assessed.  Chicago,  etc.  R.  Co.  v.  Box 
Butte    County    (Neb.)    1918D-1037. 

11.  A  large  quantity  of  steel  rails  not 
shown  to  be  intended  for  repair  of  the  road 
in  this  state,  and  not  assessed  by  the  state 
board,  may  be  assessed  locally.  Chicago, 
etc.  R.  Co.  V.  Box  Butte  County  (Neb.) 
1918D-1037. 

12.  The  construction  in  Adams  County  v. 
Kansas  City  &  0.  R.  Co.  71  Neb.  549,  of  that 
part  of  the  revenue  law  (Rev.  St.  1913,  § 
6375)  which  specifies  property  to  be  as- 
sessed locally  is  adhered  to.  Chicago,  etc. 
R.  Co.  v.  Box  Butte  County  (Neb.)  19181)- 
1037. 

13.  Decision  of  state  board  of  equaliza- 
tion.— The  state  board  of  equalization  in 
assessing  a  railroad  acts  in  a  quasi  judicial 
capacity.  In  doubtful  cases  its  determina- 
tion as  to  whether  a  particular  article  of 
property  is  a  part  of  the  railroad  entity  is 
to  be  considered  by  local  assessors.  Chicago, 
etc.  R.  Co.  v.  Box  Butte  County  (Neb.) 
1918D-1037. 

c.  Description  of  Property. 

14.  Abbreviations. — The  description  in  an 
assessment  roll  of  eight  acres  designated 
as  the  "NE  of  SEi  and  SE  of  NEi"  omitting 
the  "i>"  was  an  abbreviation  permitted  by 
L.  O.  L.  §  3598,  permitting  an  abbreviation 
in  the  description  of  lands  assessed,  as  any- 
one reading  the  description  could  not  fail  to 
understand  what  lana  was  assessed,  and,  at 
most,  it  was  a  mere  irregularity.  Smith  v. 
Dwight  (Ore.)  1918D-563. 

d.  Proceedings  to  Enforce. 

15.  Defenses. — When  mandamus  is  re- 
sorted to,  to  compel  the  assessment  or  col- 
lection of  taxes,  the  respondent  may  defend 
on  the  ground  of  satisfaction,  impossibility, 
or  want  of  jurisdiction;  but  it  is  not  a  good 
return  to  plead  irregularities  in  prior  pro- 
ceedings, another  remedy,  or  a  custom  not 
authorized  by  law.  People  v.  Pitcher  (Colo.) 
1918r)-1185. 

e.  Review  by  Boards  of  Equalization. 

16.  Necessity  of  hearing. — In  the  absence 
of  statutory  requirements,  the  board  of 
equalization,  or  even  officers  who  make  orig- 
inal assessments,  may  act  upon  their  own 
knowledge  and  judgment  in  fixing  values,  so 
that  their  orders  are  not  invalid  for  failure 


to  take  testimony  and  have  a  hearing  as  to 
value.     People  v.  Pitcher  (Colo.)  1918D-1185. 

17.  Raising  assessment. — Under  Sess.  Laws 
1915,  p.  163,  §  15,  creating  a  board  of  equal- 
ization and  empowering  it  "to  adjust,  equal- 
ize, raise  or  lower  the  valuation  of  real  and 
personal  property  of  the  several  counties  of 
the  state  and  the  valuation  of  any  item  or 
items  of  the  various  classes  of  such  prop- 
erty, to  the  end  that  all  the  taxable  prop- 
erty in  the  state  shall  be  assessed  at  its 
full  cash  value,  .  .  .  provided  that  the 
state  board  shall  have  no  power  of  original 
assessment,"  it  is  within  the  power  of  such 
board  to  raise  the  assessments  returned  by 
the  various  county  assesors  to  the  full  cash 
value  of  the  property,  provided  that  the 
aggregate  for  the  entire  state  so  raised  shall 
not  exceed  the  aggi'egate  reported  by  the 
various  county  assessors.  People  v.  Pitcher 
(Colo.)    1918D-1185. 

18.  Due  process  of  law.— Rev.  St.  1908,  § 
5573,  requires  the  assessor  to  furnish  blanks 
upon  which  every  citizen  shall  return  to  mm 
the  true  value  of  his  property,  and  requires 
the  assessor  to  determine  for  himself  the 
value  of  each  item  after  examination  of  the 
schedule.  Section  5575  states  the  manner 
in  which  certain  classes  of  property  shall  be 
scheduled.  Section  5614  provides  that  no 
failure  of  the  owner  to  return  property  for 
assessment  or  to  procure  errors  to  be  cor- 
rected and  no  irregularity,  error,  or  omission 
in  the  assessment  of  property  or  the  levy 
of  the  tax  shall  effect  the  legality  thereof. 
Section  5615  provides  the  manner  of  listing 
an  assessment  when  the  owner  is  unknown. 
Section  5639  provides  for  appeal  to  the  as- 
sessor by  an  aggrieved  taxpayer  and  requires 
notice  by  the  assessor  to  all  taxpayers  of 
changes  in  the  assessed  valuation.  Section 
5636  provides  that  the  state  board  of  equal- 
ization shall  on  reasonable  notice  to  the 
assessor,  after  summary  hearing,  require 
him  to  make  corrections  and  additions  to  an 
assessment  found  to  be  too  low,  and  pro- 
vides for  an  appeal  from  a  decision  of  the 
board.  Session  Laws  1915,  provides  for 
state  board  of  equalization  whose  duty  shall 
be  to  adjust,  equalize,  raise,  or  lower  the 
valuation  of  real  and  personal  property  and 
of  items  of  various  classes  to  such  property 
provided  that  it  shall  have  no  power  of 
original  assessment.  It  is  held  that  the 
property  owner  has  sufficient  opportunity 
to  be  heard  so  that,  when  the  original  as- 
sessment is  changed  by  the  state  board  of 
equalization,  the  board's  decision  is  not  in- 
valid as  violating  the  due  process  of-  law 
clause.  People  v.  Pitcher  (Colo.)  1918D- 
1185. 

19.  Conclusiveness. — The  order  of  the 
state  board  of  equalization  empowered  to 
raise  or  loAver  the  valuation  of  property  i» 
conclusive  as  the  judgment  of  a  quasi  court 
in  mandamus  proceedings  to  enforce  its 
orders  against  ministerial  officers,  and  no 
inquiry  can  be  had  into  its  regularity.  Peo- 
ple  V.   Pitcher    (Colo.)    1918D-1185. 

20.  The  completed  assessment  of  prop- 
erty  for  taxation,  though  the  result   of  the 


206 


ANK  CAS.  DIGEST  (1918C-1918E). 


judgment  of  several  agencies,  is  finally  de- 
termined by  the  state  board  of  equaliza- 
tion, with  the  exercise  of  whose  power  no 
court  can  interfere,  unless  its  judgment  is 
attacked  by  a  party  whose  rights  are  af- 
fected thereby  in  a  direct  proceeding  for 
fraud.  People  v.  Pitcher  (Colo.)  1918D- 
1185, 

3.  Exemptions, 
a.  Construction   of   Statutes. 

(1)  In  General. 

21.  Statutes  exempting  property  from 
taxation  are  to  be  strictly  construed  against 
the  exemption.  New  Standard  Club  v.  Mc- 
Raven  (Miss.)   1918E-274. 

22.  Powers  to  exempt  from  taxation  are 
to  be  strictly  construed  in  the  interest  of 
the  public.  Walker  v.  Richmond  (Ky.) 
1918E-1084. 

23.  Exemptions  from  taxation  must  be 
strictly  constnied,  and  one  claiming  an  ex- 
emption must  show  it  to  be  clearly  within 
the  spirit  and  intent  of  the  exception. 
Vogt   V.  Louisville    (Ky.)    1918E-1040. 

24.  Burden  of  proof. — One. claiming  to  fall 
within  a  statute  exempting  property  from 
taxation  has  the  burden  of  proof.  New 
Standard  Club  v.  McRaven  (Miss.)  1918E- 
274. 

(2)  Property  Used  for  Educational,  Charita- 
ble or  Religious  Purposes. 

25.  Social  club.— Code  1906,  §  4251,  par. 
d,  exempts  from  taxation  all  property,  real 
or  personal,  belonging  to  religious  or  charita- 
ble societies  and  used  exclusively  for  the 
purposes  of  such  societies  and  not  for  profit. 
A  social  club,  the  main  purpose  of  which  was 
to  furnish  diversion  for  the  members,  their 
families  and  friends,  and  which  maintained 
a  clubhouse  for  that  purpose,  but  incidental- 
ly dispensed  charity  to  the  members  and  out- 
siders, claimed  that  its  property  was  exempt. 
It  is  held  that  such  club  did  not  fall  within 
such  section  and  its  property  was  subject  to 
taxation.  New.  Standard  Club  v.  McRaven 
(Miss.)  1918E-274.  (Annotated) 

26.  Under  Code  1906,  §  4252,  exempting 
from  taxation  the  property  and  revenues  of 
any  religious,  charitable,  or  benevolent  soci- 
ety on  the  lodge  system,  where  no  dividends 
are  declared,  a  social  club  which  collects 
dues  and  devotes  part  of  them  to  charitable 
purposes,  but  is  not  run  on  the  lodge  plan, 
cannot  escape  taxation.  New  Standard  Club 
v.  McRaven   (Miss.)   1918E-274.   (Annotated) 

27.  Masonic  lodge. — A  lodge  of  Knights 
Templar  which  owns  real  estate  and  a  build- 
ing thereon  and  rents  the  rooms  for  lodge 
and  religious  purposes  is  not  a  purely  public 
charity  within  the  exemption  from  taxation 
in  Const.  §  170,  though  its  distributes  sups 
of  money  to  its  members  and  occasionally 
makes  donations  to  others,  when  such  do- 
nations are  drawn  largely  from  the  money 
in  the  treasury  exceeding  the  needs  of  the 
lodge,  which  has  no  general  public  charitable 


purpose.     Vogt   v,   Louisville    (Ky.)    1918E- 
1040.  (Annotated) 

(3)  Public  Utilities. 

28.  Property  used  in  connection  with 
municipal  lighting  plant. — Where  a  city  owns 
a  tract  of  sixty  acres,  through  which  the 
Boardman  river  meanders,  and  upon  the 
lower  twenty  acres  of  the  tract  maintains 
A  dam,  pond  and  water  power  plant  for  the 
production  of  electric  current,  the  remaining 
forty  acres  of  the  tract  not  being  used  other 
than  to  be  burdened  to  some  extent  by  the 
water  backed  up  by  the  dam,  the  entire 
tract  is  used  for  a  public  purpose,  rendering 
it  exempt  from  ta.xation,  and  such  exemption 
is  not  restricted  to  the  twenty-acre  portion 
actually  utilized  by  the  dam,  plant,  and 
pond.  Traverse  v.  Blair  Tp.  (Mich.)  1918E- 
81. 

29.  Municipal  lighting  plant. — ^Where  a 
city  owns  and  operates  an  electric  lighting 
plant  for  the  purpose  of  the  city's  use  and 
to  sell  current  for  light  and  power  to  citi- 
zens, the  enterprise  is  not  a  private  business, 
but  is  a  "public  utility"  within  the  provision 
of  Comp.  Laws  1897,  §  3830,  subd.  3,  amend- 
ed by  Pub.  Acts  1911,  No.  174,  exempting 
from  taxation  lands  owned  by  a  city  used 
for  public  purposes.  Traverse  v.  Blair  Tp. 
(Mich.)    1918E-81.  (Annotated) 

30.  Where  such  plant  is  located  in  defend- 
ant township  beyond  the  boundaries  of  the 
city,  such  exemption  is  not  affected  by  the 
fact  that  being  so  located  exemption  of 
the  plant  would,  without  compensating  ben- 
efits, unequally  lessen  the  taxable  property 
of  one  municipality  for  the  benefit  of  an- 
other, since  the  exempting  language  of  such 
section  is  general  and  without  distinction  as 
to  location.  Traverse  v.  Blair  Tp.  (Mich.) 
1918E-81.  (Annotated) 

31.  That  such  exemption  will  result  in 
unjust  or  unequal  taxation  as  between  such 
city  and  township  clothes  the  court  with  no 
power  to  correct  such  injustice,  since  in 
matters  of  taxation  the  determination  of 
the  legislature  in  that  respect  is  conclusive. 
Traverse  v.   Blair  Tp.    (Mich.)    1918E-81. 

(Annotated) 

32.  The  Home  Rule  Act  (Pub.  Acts  1909, 
No.  279)  as  amended  by  Pub.  Act's  1913,  No. 
5,  and  by  Pub.  Acts  191.5.  Xo.  210,  does  not 
restrict  the  application  of  the  general  ex- 
emption provision  in  the  Tax  Law,  so  as  to 
except  from  exemption  public  utilities  gen- 
erally owned  by  municipalities  and  located 
outside  their  corporate  boundaries,  since  the 
provision  of  the  home  rule  act,  as  so  amend- 
ed, with  regard  to  taxation,  applies  only  to 
transportation  property.  Traverse  v.  Blair 
Tp.    (Mich.)    1918E-81.  (Annotated) 

b.  Power  of  Municipality. 

33.  A  municipal  corporation  has  no  in- 
herent power  to  exempt  from  taxation  prop- 
erty which  it  is  authorized  to  tax  by  its 
charter.  Walker  v.  Richmond  (Ky.)  1918E- 
1084.  (Annotated) 


TAXATIOX, 


207 


4.  Collection  of  Taxes. 

34.  Power  of  city  to  compromise  suit. — A 
municipality  cannot  compromise  a  tax  suit. 
Walker  v.  Richmond    (Ky.)    1918E-1084. 

6.  Lien  for  Taxes. 

35.  Misnomer    of    landowner. — In    a    tax 

foreclosure  procedure,  the  names  "Lewis" 
and  "Louis,"  under  common  usage  and  pro- 
nunciation, are  "idems  sonans,"  which  nile 
is  that,  if  two  names,  although  spelled  dif- 
ferently, sound  alike,  they  are  considered  as 
the  same,  and  which  holds  if  the  attentive 
ear  finds  difficulty  in  distinguishing  them 
when  pronounced,  or  common  and  long-con- 
tinued usage  has  made  them  identical  in 
pronunciation;  absolute  accuracy  in  spell- 
ing names  is  not  required  in  legal  pi'oceed- 
ings,  as  the  law  does  not  regard  the  spell- 
ing of  names  so  much  as  their  sound. 
Smith  V.  Dwight  (Ore.)  1918D-563. 

(Annotated) 

36.  Under  L.  0.  L.  §  3586,  providing  that 
no  assessment  shall  be  invalidated  by  a  mis- 
take in  the  names  of  the  owner  of  real 
property  assessed,  section  3701,  providing 
that  no  assessment  for  taxes  shall  be  con- 
sidered illegal  on  account  of  any  irregularity 
in  the  changing  or  listing  the  taxes  to  any 
other  name  than  that  of  the  owner,  and 
section  3710,  providing  that  any  judgment 
for  the  sale  of  real  estate  shall  estop  all 
parties  from  raising  any  objection  thereto 
or  to  a  tax  title  based  thereon  which  existed 
before  such  judgment,  and  could  have  been 
presented  as  a  defense  to  an  application 
therefor,  a  tax  foreclosure  is  not  void  be- 
cause, where  the  true  name  of  "Lewis"  L. 
Smith  was  written  on  the  complaint,  a  copy 
of  which  was  served  with  the  summons,  the 
summons  itself  was  directed  to  "Louis"  L. 
Smith,  where  it  was  not  claimed  that  the 
tax  had  been  paid  or  that  the  property  was 
not  liable  to  tax  levy.  Smith  v.  Dwight 
(Ore.)    1918D-563.  (Annotated) 

6.  Remedy   for  Erroneous   Taxation   or  As- 
sessment. 

37.  Collateral  attack. — While  a  valuation 
of  property  for  purposes  of  taxation  in  a 
capricious  or  arbitrary  way,  through  chance 
and  guess,  and  without  exercising  any  judg- 
ment, may  and  should,  in  the  absence  of 
waiver  of  such  irregularities,  be  set  aside, 
it  can  be  done  only  in  an  appropriate  pro- 
ceeding, and  not  collaterally  in  mandamus 
to  enforce  the  order  of  such  taxing  officials 
People  v.  Pitcher    (Colo.)    1918D-1185. 

7.  Tax  Sales  and  Deeds. 

a.  Compliance  with  Law. 

38.  Assessment  contrary  to  constitution. 
— ^Where  an  assessment  on  a  patented  min- 
ing claim  at  $10  per  acre  under  St.  1905,  c. 
68,  expressly  following  Const,  art.  10,  §  1,  as 
amended  in  1902  (see  St.  1901,  p.  136),  was 
void  under  the  amendment  of  that  section  in 
1906  (see  St.  1907,  p.  501),  providing  for  an 


assessment  of  such  claims  at  $500,  with  cer- 
tain exceptions  as  to  labor  performed,  etc., 
the  tax  sale  under  the  assessment  was  void. 
Wren  v.  Dixon   (Nev.)   1918D-1064. 

89.  Excessive  amount  of  land  sold. — Un- 
der L.  0.  L.  §  3701,  providing  that  at  a 
tax  sale  the  person  oflfering  to  pay  the 
amount  due  on  each  tract  for  the  least 
quantity  shall  be  the  purchaser  of  such 
quantity,  which  shall  be  taken  from  the  east 
side  of  such  tract,  and  the  remainder  dis- 
clxarged  from  the  lien,  a  sheriff's  tax  sale  of 
a  quarter  section  of  land  valued  at  $7,000 
for  taxes,  and  interest,  amounting  to  $110.- 
60,  without  showing  that  the  land  was  of- 
fered for  sale  in  accordance  with  the  law 
or  whether  the  eastern  or  what  parcel  was 
first  offered,  or  in  how  many  parcels  or  for 
what  the  several  parcels  were  sold,  in  view 
of  the  finding  that  the  purchaser  was  the 
only  bidder,  is  inequitable  and  unconscion- 
able.    Smith  V.  Dwight   (Ore.)    1918D-563. 

40.  Under  L.  '.  L.  §  3709,  making  a  sher- 
iff's tax  deed  prima  facie  evidence  that  the 
sale  as  legally  conducted,  the  owner  has 
the  burden  of  proving  irregularity,  and  his 
showing  that  an  entire  quarter  section  val- 
ued at  $7,000  was  sold  ^or  liens  totaling  to 
$110  overcomes  the  prima  facie  showing 
of  regularity.  Smith  v.  Dwight  (Ore.)  1918D- 
563. 

b.  Deeds. 

41.  Acknowledgment      and      witnessing.— 

Under  L.  0.  L.  §  3702,  providing  that  a 
sheriff's  tax  deed  shall  be  recorded  "without 
the  sealing,  witnessing,  or  acknowledgment." 
the  recording  officer  is  simply  required  to 
take  official  notice  of  the  sheriff's  signature, 
and  it  is  not  necessary  that  his  deed  be 
acknowledged  or  witnessed.  Smith  v. 
Dwight  (Ore.)  1918D-563. 

42.  Invalidity  of  sale  apparent  on  face. — 
A  tax  deed  is  void  on  its  face  when  it  shows 
a  sale  of  land  in  a  manner  not  authorized 
bv  statute.  Murphy  v.  Wilson  (N.  D.) 
1918E-1101. 

c.  Action  to  Quiet  Title  or  Set  Aside  Sale. 

43.  Payment  of  tax  as  condition  prece- 
dent.— ^Where  the  property  of  a  person  is  sub- 
ject to  a  tax  under  the  law,  he  must  con- 
form to  thfe  requirements  of  equity  and  pay 
the  assessment  before  he  can  successfully 
maintain  a  suit  to  defeat  a  ^ax  title  out- 
standing against  his  land.  Smith  v.  Dwight 
(Ore.)   1918D-563. 

8.  Special  Assessments. 

a.  Nature  and  Exercise  of  Power. 

44.  The  authority  to  require  the  property 
specially  benefited  to  bear  the  expense  of  a 
local  improvement  is  a  branch  of  the  taxing 
power,  or  included  within  it,  and  the  ques- 
tion as  to  whether  the  expense  of  iriaking 
such  improvenrent  shall  be  paid  out  of  the 
general  treasury,  or  to  be  assessed  upon  the 
abutting  or  other  property  specially  bene- 
fited, and  if  in  the  latter  mode,  whether  the 


20S 


ANN.  CAS.  DIGEST  (1918C-1918E). 


assessment  shall  be  upon  all  the  property 
found  to  be  benefited,  or  alone  upon  the 
abutters,  according  to  frontage  or  according 
to  the  area  ot  their  lots,  is  a  question  of 
legislative  expediency.  Roswell  v.  Bate- 
man  (N.  Mex.)  1918D-426.  (Annotated) 

b.  Nature  of  Improvement. 

45.  Sprinkling  street. — The  sprinkling  of 
streets  is  such  an  "improvement"  as  will  sup- 
port a  special  assessment.  Roswell  v.  Bate- 
man  (N.  Mex.)  1918D-426. 

c.  Property  Subject  and  Exemptions. 

46  Power  of  city  to  grant  exemption. — 
Under  Gen.  St.  1888,  c.  107,  in  force  be- 
tween 1870  and  1873,  acticle  6,  providing 
that  the  trustees  of  a  town  may  condemn 
land  for  street  purposes  in  certain  cases,  and 
prescribing  the  way  in  which  it  may  be 
done,  the  law  then  authorizing  a  city  to 
require  the  property  holder  to  pay  the  ex- 
pense of  building  sidewalks  in  front  of  his 
property,  a  city  has  no  authority,  in  con- 
sideration of  an  owner's  setting  his  fence 
back  twelve  feet,  to  make  a  contract  exempt- 
ing the  owner  from  the  expense  of  building 
sidewalks  by  agreeing  that  the  owners  of 
the  property  shall  never  be  required  to  build 
a  sidewalk,  and  that  the  city  itself  will  per- 
petually maintain  a  pavement.  Walker  v. 
Richmond    (Ky.)    1918E-1084. 

(Annotated) 

d.  Persons  Entitled  to  Object. 

47.  Section  243  of  the  charter  of  the  city 
of  St.  Paul  is  not  in  conflict  with  the  four- 
teenth amendment  to  the  Federal  Consti- 
tution, because  only  resident  owners  are 
entitled  to  sign  the  remonstrance  therein 
provided  for.  Sullwold  v.  St.  Paul  (Minn.) 
1918E-835. 

48.  The  words  "resident  owners,"  as  used 
in  section  243  of  the  charter  of  the  city  of 
St.  Paul  providing  that  no  public  improve- 
ments shall  be  made  if  sixty  per  cent  of 
the  resident  owners  remonstrate,  considered 
and  held  to  apply  only  to  parties  owning 
property  on  the  line  of  the  improvement  and 
residing  within  the  city.  Sullwold  v.  St. 
Paul    (Minn.)    1918E-835.  (Annotated) 

e.    Mode    of    Assessment. 

49.  "Front  foot  rule." — An  assessment  for 
a  local  improvement,  levied  under  the  "front 
foot  rule,"  instead  of  according  to  benefits 
accruing  to  the  property  assessed,  does  not 
violate  the  fourteenth  amendment  to  the 
Constitution  of  the  United  States.  Roswell 
V.  Bateman  (N,  Mex.)  19]^J.^ 

(Annotated) 

f.  Proceedings. 

50.  Necessity  of  hearing. — Where  an  as- 
sessment levied  for  a  street  improvement  can 
only  be  enforced  by  the  filing  of  a  notice  of 
lien,  and  foreclosing  the  same  in  the  same 
manner  that  mortgages  on  real  estate  are 
foreclosed,  and  as  such   foreclosure  can  on- 


ly be  had  upon  notice  to  the  property  own- 
er, there  is  no  taking  of  property  without 
due  process  of  law,  although  neither  the 
statute  nor  ordinance  adopted  in  puisuance 
thereof  makes  provision  for  notice  to  the 
owner  of  property  of  the  levying  of  assess- 
ments for  street  improvements.  Roswell  v, 
Bateman    (X.  Mex).   1918D-42&. 

51.  Judicial  review. — In  the  award  of  dam- 
ages and  assessment  of  benefits  where  the 
improvement,  when  considered  in  connection: 
with  the  property  affected,  is  such  that  hott- 
est minds  might  differ,  the  apportionment 
thereof  is  a  legislative  function,  and  the 
courts  will  not  interfere  in  the  absence  of 
a  clear  abuse  of  discretion.  Sullwold  v.  St. 
Paul    (Minn.)    1918E-835. 

9.  Succession  Taxes. 

52.  Nature  of  tax. — Inheritance  or  succes- 
sion taxes  are  not  taxes  laid  upon  persons 
or  property,  or,  strictly  speaking,  taxes  at 
all,  but  rather  death  duties,  levied  as  exac- 
tions of  the  state  in  the  course  of  the  set- 
tlement of  estate,  as  an  incident  to  the  devo- 
lution of  title  by  force  of  its  laws.  Cor- 
bin  v.  Baldwin   (Conn.)   1918E-932. 

53.  Rate  of  taxation. — It  is  error  to  assess 
an  inheritance  tax  on  property  not  exempt 
at  the  rate  of  eight  per  cent  instead  of  five 
per  cent  on  $40,000,  six  per  cent  on  the 
next  $200,000,  and  seven  per  cent  on  the 
balance.  Corbin  v.  Balawin  (Conn.)  iri8E- 
932. 

54.  Deduction  of  other  taxes. — In  comput- 
ing the  amount  of  an  inheritance  tax,  there 
should  be  deducted  from  the  total  amount 
of  the  appraisal  local  taxes  paid  to  the 
tax  collector,  inheritance  taxes  paid  in  an- 
other state  and  an  income  tax  paid  to  the 
United  States  internal  revenue  collector.  Cor- 
bin v.  Baldwin   (Conn.)   1918E-932. 

55.  Exemptions. — An  intention  to  impose 
inheritance  taxes  on  property  devised  or  be- 
queathed to  public  charitable  uses,  and 
thereby  divert  some  portion  of  the  estate 
to  some  other  public  use  than  that  within 
the  mind  or  purpose  of  the  testator,  will 
not  be  deduced  from  language  not  clearly  ex- 
pressing or  indicating  such  intention.  Cor- 
bin V.  Baldwin    (Conn.)    1918E-932. 

56.  Corporation  or  institution  receiving 
state  aid. — The  rule  that  a  portion  of  a  stat- 
ute exempting  something  from  the  opera- 
tion of  the  general  rule  prescribed  by  the 
statute  should  receive  a  strict  construction 
is  subject  to  limitations,  and  does  not  ap- 
ply to  the  construction  of  Pub.  Acts  1915, 
c.  .332,  §  3,  exempting  property  passing  to 
corporations  or  institutions  receiving  state 
aid  from  the  inheritance  tax  imposed  by 
that  act.  Corbin  v.  Baldwin  (Conn.)  1918E- 
932. 

57.  Within  Pub.  Acts  1915,  c,  332,  §  3, 
exempting  from  inheritance  taxes  all  prop- 
erty passing  to  or  in  trust  for  the  benefit 
of  any  corporation  or  institution  located  in' 
the  state  which  receives  state  aid,  educa- 
tional, charitable,  and  other  corporations 
which  are  granted  exemptions  from  general 
taxation,   in   recognition   of  the   devotion   ot 


TAXICABS— TELEGRAPHS  AXI)  TELEPHONES. 


205) 


their  property  to  public  purposes,  are  insti- 
tutions receiving  state  aid,  and  are  entitled 
to  exemption,  since  the  word  "aid,"  in  its 
ordinary  significance,  has  a  broad  and  com- 
prehensive meaning,  and  includes  help  and 
assistance  of  whatever  kind  and  by  what- 
ever means  or  method  provided,  and  there 
is  nothing  in  the  conditions  and  circum- 
stances under  which  the  statute  was  en- 
acted, the  subject-matter,  the  context,  re- 
lated legislation,  or  antecedent  legislative 
history  to  restrict  its  meaning.  Corbin  v. 
Baldwin    (Conn.)    1918E-932. 

(Annotated) 

58.  The  World  Peace  Foundation,  intended 
to  promote  international  peace,  is  a  charity, 
and  inheritance  taxes  will  not  be  assessed  on 
a  devise  or  bequest  to  it.  Parkhurst  v. 
Ginn   (Mass.)   1918E-982. 

10.  Income  Tax. 

59.  Levy  on  income  produced  by  interstate 
commerce. — The  levy  and  assessment,  \inder 
Laws  Wis.  1011,  c.  658,  of  a  general  income 
tax  upon  the  net  income  of  a  Wisconsin  cor- 
poration derived  from  transactions  in  inter- 
state conunerce,  is  not  such  a  direct  bur- 
den on  interstate  commerce  as  to  contra- 
vene the  commerce  clause  of  Const,  art.  1, 
§  8.  United  States  Glue  Co.  v.  Oak  Creek 
(U.  S.)   1918E-749.  (Annotated) 


TAXICABS. 

See  Automobiles. 

See  Carbiers  of  Passengers,  19,  20. 


TEAM. 

Exemption  from  execution,  see  Executions, 
3-6,  8. 


TELEGRAPHS  AND  TELEPHONES. 

1.  Transmission  of  Messages: 

a.  Limitation  of  Liability,  209. 

b.  Actions,  209. 

2.  Rights  and  Liabilities  of  Telephone  Com- 

panies, 210. 

Federal  control  over  telegraph  lines,  see  Ix- 

TERSTATE   COMMERCE,    9. 

Liability   of   electric  company  for   injury  to 

employee     of     telephone     company,     see 

Electricity,  5,  15,  16. 
Telegraph    lines   and   messages   as   interstate 

commerce,    see    Interstate    Commerce, 

5-8. 

1.  Transmission  of  Messages. 

a.  Limitation   of   Liability. 

1.  Effect  of  federal  statute. — Where  the 
]i'aintiff  failed  to  receive  unrepeated  death 
message  sent  between  intrastate  point  but 
passing  through  another  state  en  route,  on 
account  of-  the  companv's  delay,  he  cannot 
Ann.  Cas.  Dig. 'lOlBC-E.— 14. 


recover  more  than  the  amount  limited  im 
contract;  such  message  being  interstate  com- 
merce, and  Act  Cong.  .June  18,  1910,  recogniz- 
ing such  limitations  of  liability.  Western. 
Union  Tel.  Co.  v.  Lee   (Ky.)   1918C-1026. 

(Annotated) 

2.  Congress,  by  the  act  to  regulate  com- 
merce (Act  Feb.  4,  1887,  c.  104,  §  1,  24  Stat.. 
379,  as  amended  June  18,  1910,  Act  June  18, 
1910,  c.  309,  §  7,  36  Stat.  544  [4  Fed.  St.  Ann.. 
2d  ed.  337]),  which  provides  that  telegraph 
companies  engaged  in  interstate  commerce 
shall  be  deemed  common  carriers,  and  section' 
15  of  which  requires  such  companies  to  file 
with  the  interstate  commerce  commission  the 
rates  of  charges  and  authorizes  the  commis- 
sion to  determine  what  shall  be  just  and  rea- 
sonable rates  and  what  regulations  or  prac- 
tices are  fair  and  reasonable,  occupied  the 
field  of  regulating  interstate  commerce  by 
telegraph,  and  a  provision  of  a  contract  limit- 
ing the  liability  of  the  company  for  an  inter- 
state message,  which  has  not  been  disap- 
proved by  the  commission,  is  binding  and 
prevents  recovery  of  the  statutory  penalty 
for  error  in  transmitting  which  causes  delay 
in  delivery,  imposed  by  Code  1904,  §  1294h,. 
els.  5  and  6.  Western  Union  Tel.  Co.  v.. 
Boiling    (Va.)    1918C-10.36.  (Annotated) 

3.  Presentation  of  claim. — In  action  for 
damages  caused  by  failure  to  deliver  tele- 
graph message,  defense  that  claim  was  not 
presented  within  sixty  days,  as  required  by 
contract,  Avas  without  merit,  where  plain- 
tiff presented  claim  within  sixtj'^  days  after 
learning  of  company's  default.  Western. 
Union  Tel.  Co.  v.  Lee  (Ky.)  1918C-1026. 

b.   Actions. 

4.  Persons  entitled  to  recover  for  delay 
of  telegram. — Both  the  sender  and  receiver 
of  telegram  may  recover  damages  for  delay 
in  delivering  message.  Western  Union  Tel. 
Co.    V.    Lee    (Ky.)    1918C-1026. 

5.  Evidence. — In  an  action  against  a  tele- 
graph Company  for  failing  to  deliver  a  mes- 
sage offering  plaintiff  a  personal  service  con- 
tract, plaintift"'s  testimony  that  he  w^ould 
have  accepted  the  offer  if  message  had  been 
delivered  is  admissible.  Pfeister  v.  West- 
ern  Union   Tel.   Co.    (111.)    1918D-738. 

(Annotated)' 

6.  Questions  for  jury. — Plaintiff's  testi- 
mony that  he  would  have  accepted  a  personal 
service  contract  if  the  telegram  containing 
it  had  been  delivered  by  defendant  makes 
such  issue  one  for  the  jury.  Pfiester  v. 
Western   Union   Tel.  Co.    (111.)    1918D-738. 

(Annotated) 

7.  Whether  plaintiff  exercised  reasonable 
diligence  in  reducing  his  loss  after  defend- 
ant telegraph  company  failed  to  deliver  an 
offer  to  play  baseball  is  held  to  be  a  jury 
question.  Pfiester  v.  Western  Union  Tel.  Co.. 
(111.)    1918D-738. 

8.  Plaintiff's  testimony  that  he  would  have' 
accepted  a  personal  service  contract  if  the' 
telegram  containing  it  had  been  delivered  by 
the  defendant,  and  that  he  had  been  unable' 
to  secure  employment,  etc.,  makes  proximate 
cause  of  plaintiff's  damages  a  jury  question:^ 


210 


AI^ls.  CAS.  DIGEST  (1918C-1918E). 


Pflester    v.    Western    Union    Tel.    Co.    (111.) 
1018D-738.  (Annotated) 

9.  Recovery  for  mental  anguish. — In  ac- 
tion for  failure  to  deliver  a  death  message 
transmitted  between  intrastate  points  but 
passing  through  another  state  en  route,  the 
plaintiff  cannot  recover  for  mental  suffering; 
such  message  being  interstate  commerce,  and 
Act  Cong.  June  18,  1910,  not  permitting  such 
recovery.  Western  Union  Tel.  Co.  v.  Lee 
(Ky.)    1918C-1026.  (Annotated) 

2,  Rights  and  Liabilities  of  Telephone  Com- 
panies. 

10.  When  payment  due. — ^Where  a  con- 
tract for  telephone  service  provided  that  by 
paying  an  additional  fee  a  subscriber  could 
pay  his  quarterly  rental  during  the  second 
instead  of  the  first  month,  the  subscriber 
was  not  in  arrears  at  the  time  of  removal  of 
the  telephone  during  the  first  month.  Har- 
baugh  V.  Citizens  Telephone  Co.  (Mich.) 
1918E-117. 

11.  Damages  for  wrongful  discontinuance 
of  service, — In  the  absence  of  evidence  that 
a  telephone  company  acted  recklessly,  neg- 
ligently, or  maliciously  in  removing  the 
plaintiff's  telephone  and  interrupting  his 
service  he  cannot  recover  punitive  damages, 
but  it  limited  to  actual  damages  for  an- 
noyance and  inconvenience  actually  suffered. 
Harbaugh  v.  Citizens  Telephone  Co.  (Mich.) 
1918E-117.  (Annotated) 

12.  Evidence  as  to  comparative  profits  be- 
fore, during  and  after  interruption  of  tele- 
phone service,  is  admissible  under  proper 
safeguards  in  an  action  for  damages  for  such 
interruption.  Harbaugh  v.  Citizens.  Tele- 
phone Co.   (Mich.)    1918E-117. 

13.  The  question  whether  the  plaintiff  suf- 
fered loss  of  profits  from  interruption  of  his 
telephone  service  is  for  the  jury.  Harbaugh 
V.  Citizens  Telephone  Co.  (Mich.)  1918E-117. 


TENANT. 

See  Life  Estates;  Landlord  and  Tenant; 
Tenants  in  Common. 


TENANTS  BY  ENTIRETIES. 

Interest  as  subject  to  execution,  see  Execu- 
tions, 1. 


TENANTS  IN  COMMON. 

1.  Grant  of  easement  by  one  tenant. — A 
tenant  in  common,  by  deed  to  which  the 
other  tenants  were  strangers,  may  not  place 
the  burden  of  a  right  of  way  on  the  estate 
so  held  in  common,  and  make  it  servient  to 
some  other  land.  Silverman  v.  Betti  (Mass.) 
19180-90.  (Annotated) 


Offer  as  svnonymous  with  tender,  see  Sales, 

3. 
Reasonableness   of  tender   of   fare,   see  Cab- 

EIEES  OF  PaSSENQEBS,   1,  2,   12. 


See  Wills. 


TESTAMENT. 


TESTS. 


TENDER. 

See  PaTment,  1,  2. 


Determination   imder    contract   with    United 
States,  see  United  States,  1-3. 


THEATERS    AND    AMUSEMENTS. 

Joint   special    committee    appointed  by   city 

council   to   arrange   for   Fourth  of   July 

celebration  as  agents  of  city,  see  Mu- 
nicipal  COBPOKATIONS,  28,   29. 

Members    of    committee    appointed  by    city 

council  to  arrange  for  Fourth  of  July 
celebration  as  public  officers,  1. 

1.  Offer  to  baseball  player. — An  offer  to 
pay  a  monthly  sum  for  playing  baseball  is 
held  to  be  an  offer  for  the  baseball  season, 
in  view  of  the  previous  negotiations  between 
parties  for  a  season  contract  and  usual  cus- 
tom regarding  such  contracts.  Pflester  v. 
Western  Union  Tel.  Co.    (111.)   1918D-738. 

2.  Injury  to  patron  of  boat  livery. — De- 
fendant is  not  liable  for  death  of  plaintiff's 
intestate,  caused  by  sinking  of  a  boat  hired 
of  it,  in  which  he  had  gone  rowing  with 
three  companions,  for  failure  to  furnish  a 
boat  which,  when  capsized,  would  float,  sup- 
porting in  the  water  four  clinging  passengers, 
as  defendant  did  not  undertake  to  furnish  a 
nonsinkable  boat.  Clark  v.  Detroit,  etc.  R. 
Co.    (Mich.)    1918E-1068.  (Annotated) 

3.  In  an  action  for  damages  for  death  of 
plaintiff's  intestate,  caused  by  sinking  of 
boat,  hired  of  defendant,  in  which  he,  with 
three  companions,  had  gone  rowing,  where 
there  are  no  eyewitnesses  to  the  accident, 
but  evidence  shows  that  plaintiff's  intestate 
had  gone  on  water  twice  before  trip  on  which 
accident  happened,  on  same  day  and  in  same 
boat,  and  that  on  one  of  these  occasions  he 
and  others  had  rocked  the  boat  so  that  it 
dipped  water,  and  there  is  no  evidence  tliat 
boat's  hull  was  infirm,  or  that  it  leaked, 
and  no  other  evidence  showing  negligence  on 
part  of  defendant,  it  is  error  to  refuse  to 
direct  a  verdict  for  it.  Clark  v.  Detroit, 
etc.  R.  Co.  (Mich.)   1918E-1068. 

(Annotated) 

4.  Powers  of  committee — ^Authoriring  dis- 
play of  fireworks. — Under  Gen.  Laws  1909, 
o.  134,  §  4,  forbidding  the  use  of  fireworks 
for  exhibition  or  amusement  without  a  pre- 
vious special  license  from  the  town  council, 
or  the  board  of  police  commissioners,  a  gen- 
eral committee  of  members  of  a  city  council, 
augmented,  without  authority,  by  the  addi- 
tion of  other  citizens,  had  no  authority  with- 
out a  special  license  to  arrange  for  a  display 
of  fireworks  on   the  Fourth  of  July,  or  to 


THEORY  OF  CASE— TIPS. 


211 


grant  to  a  fireworks  company  any  special 
license  for  the  display.  Sroka  v.  Halliday 
(R.   I.)    1918EV-961. 

5.  Injury  to  spectator  of  display  of  fire- 
works.— It  is  actionable  negligence  so  to  fire 
bombs  that  they  will  fall  upon  a  spectator 
standing  where  he  is  expected  to  stand  to 
view  a  display  of  fireworks.  Sroka  v.  Halli- 
day  (R.  I.)   1918D-961. 

6.  The  promoters  of  a  fireworks  display, 
which  may  become  a  nuisance  by  reason  of 
the  place  where  and  the  manner  in  which 
it  is  conducted,  may  be  held  personally  liable 
for  damages  for  resulting  personal  injuries. 
Sroka    v.    Halliday    (R.    I.)     1918D-961. 

I  Annotated) 

7.  Liability  of  committee  in  charge. — ^It 
was  the  duty  of  the  members  of  a  com- 
mittee for  expending  an  appropriation  for  and 
arranging  for  a  Fourth  of  July  celebration  to 
see  that  proper  precautions  against  injury 
from  the  negligent  setting  off  of  fireworks 
were  taken,  and  the  fact  that  they  did  not 
interfere  with  the  manner  in  which  that 
was  done  bv  tlieir  agent  did  not  aifect  their 
liability.  Sroka  v.  Halliday  (R.  I.)  1918D- 
[161.  *  (Annotated) 

8.  Wliere  the  members  of  a  committee  ap- 
pointed by  a  city  council  to  have  charge  of 
an  appropriation  for  and  the  arrangements 
for  a  Fourth  of  July  celebration,  without 
authority  thereto,  augmented  the  committee 
by  the  addition  of  other  citizens,  and  con- 
tracted with  a  company  to  furnish  fireworks 
in  a  manner  satisfactory  to  the  committee, 
the  manner  of  firing  was  under  the  control 
of  the  committee,  who  in  case  of  danger 
might  haAe  forbidden  the  display,  so  that  the 
fireworks  company  was  not  an  "independent 
contractor,"  but  the  'agent"  of  such  commit- 
tee, ju  respect  to  their  personal  liability  for 
injury  resulting  from  negligence  in  the  man- 
ner of  setting  off  the  fireworks.  Sroka  v. 
Halliday   (R.  I.)    1918D-961.  (Annotated) 

9.  Evidence. — In  an  action  against  the 
members  of  a  Fourth  of  July  celebration 
committee  for  injuries  alleged  to  have  result- 
ed from  their  negligence  in  setting  off  a  dis- 
play of  fireworks,  testimony  of  member  of 
committee  as  to  whether  they  were  set  off 
from  a  good  location  was  erroneous,  where 
he  was  not  qualified  as  an  expert  in  fireworks 
displays,  and  he  should  have  been  asked 
what  was  done  in  such  lot  in  previous  years, 
as  known  to  him,  and  might  have  stated  the 
nature  of  any  previous  displays  by  way  of 
comparison  with  the  one  involved,  and  wheth- 
er anv  previous  damage  had  been  done. 
Sroka  *v.   Halliday    (R.   I.)    1918D-961. 

(Annotated) 

10.  In  such  action  evidence  as  to  the  finan- 
cial responsibility  of  the  defendants'  agent  in 
setting  oft"  the  display  was  immaterial  and 
inadmissible,  where  such  agent  was  not  a 
party  to  the  action.  Sroka  v.  Halliday 
(R.  I.)   1918D-961.  (Annotated) 

11.  Questions  for  jury, — In  an  action 
against  the  members  of  a  Fourth  of  July 
committee  for  personal  injury  resulting  from 
the  negligent  setting  off  of  fireworks,  it  is 
held,  on  the  evidence  that  whether  the  dis- 
play was  a  nuisance  growing  out  of  the  place 


where  and  the  manner  in  which  it  was  con- 
ducted was  for  the  jury.  Sroka  v.  Hallidav 
(R.  I.)    1918D-961.  (Annotated*) 

12.  In  an  action  for  personal  injury  from 
the  alleged  negligence  of  the  members  of  a 
Fourth  of  July  celebration  committee  in 
causing  or  permitting  explosive  aerial  bombs 
used  in  a  fireworks  display  to  be  sent  up  by 
their  agents  so  as  to  fall  on  private  prop- 
erty while  unexploded,  and  there  remain 
without  recovery  until  found  by  a  small 
boy,  and  then  exploded  to  his  injury,  it  is 
held  that  defendant  "s  negligence  was  for 
the  jury.  Sroka  v.  Halliday  (R.  I.)  1918D- 
''^'  ^/.3«HOT   (^^Ot^ted) 


THEORY  OF  CASE. 

Extending  issue,  see  Tbial,  10. 

TICKETS  AND  FARES. 

See  Cabbiees  of  Passengebs. 

TIMBER. 

See  Tbees  and  Timbeb. 

TIME. 

For  appeal,  see  Appeal  and  Ebbob,  15. 
Effect  of  extension  of  time,   see  Bills  and 

XOTES,    1,    2;    SUBETYSHIP,   2,    3. 

For  notice  of  claim,  see  Cabeiebs  of  Goods, 

6-8;  Cabbiebs  of  Live  Stock,  3. 
Limiting  time  for  filing  claim. 

TIFS. 

1.  Construction  of  anti-tipping  act. — ^Laws 
1912,  c.  136,  §  4,  provides  that  any  hotel, 
restaurant,  caf6  dining  car,  railroad,  or  sleep- 
ing car  company,  and  the  manager,  officer, 
or  agent  in  charge,  violating  the  anti-tipping 
act  or  wilfully  allowing  it  to  be  violated, 
shall  be  subject  to  a  penalty  for  each  tip 
allowed  to  be  given.  The  section  further 
provides  that  if  the  hotel,  restaurant,  etc., 
fail,  neglect,  or  refuse  to  post  the  act  as  re- 
quired, such  hotel,  etc.,  shall  be  subject  to 
fine.  An  indictment  averred  that  accused, 
being  then  and  there  the  proprietor  of  a  caf& 
and  as  owner  and  proprietor  being  then  and 
there  in  charge,  wilfully  and  unlawfully 
did  fail  to  post  the  act.  It  is  held  that  the 
indictment  did  not  charge  an  offense;  the 
first  sentence  of  the  section,  which  included 
the  agent  or  manager  in  charge  of  hotels, 
etc.,  being  restricted  to  the  permitting  of  or 
violations  of  the  act,  and  the  latter  impos- 
ing a  penalty  fcjr  failure  to  post  the  act  upon 
the  hotel,  caf6,  railroad  company,  etc.  State 
V.  Angelo    (Miss.)    1918D-237. 

(Annotated) 


212 


ANN.  CAS.  DIGEST  (1918C-1918E). 


TITLE. 

Abstract  of,  see  Abstbact  of  Title. 

When  title   passes   under   sale   contract,   see 

Sales,  1. 
Of  vendor,  see  Vendob  and  Pubchaseb,  8-13. 


TOUXT    ROOMS. 

Statute  requiring  toilet  rooms  for  employees, 
see  Labob  Laws,  2,  3. 


TORRENS  ACT. 

Validity    and    construction,    see    Recobmng 
Acts,  2-8. 


TORTS. 

Release  of  joint  tortfeasor,  see  Release  and 
Dischabge,  2-7. 

1.  Waiver  of  tort. — Whenever  a  party  has 
derived  a  pecuniary  advantage  from  a  wrong 
done  by  him,  the  person  wronged  can  waive 
the  tort  and  maintain  an  action  on  the 
contract.     Jewell  v.   Nuhn    (la.)    1918D-356. 

2.  A  tort  may  not  be  waived  and  assump- 
sit maintained  thereon  against  a  wrongdoer, 
when  the  latter's  estate  has  not  been  bene- 
fited thereby,  as  by  the  appropriation  by  him 
of  plaintiff's  property  or  the  proceeds  of  the 
sale  thereof,  and  evidence  of  such  tort  and 
damages  to  plaintiff  therefrom,  and  not  so 
benefiting  the  estate  of  defendant,  should,  in 
an  action  ex  contractu  against  him,  be  re- 
jected. Parkersburg,  etc.  Sand  Co.  v.  Smith 
(W.   Va.)    1918E-449. 


TOWNS. 

Meaning  of  "town"  as  used  in  statute  au- 
thorizing formation  of  lighting  district 
by  unincorporated   towns,   see  Lighting 

DiSTBICTS,  3. 


TRADE  FIXTURES. 

See  FlXTTJBES. 


police  power,  for  the  tradijjg  stamp  scheme 
while  not  a  "lottery"  or  "gaming"  may  be 
considered  as  having  the  seduction  and  evil 
of  such.  Trading  Stamp  Cases  (AVis.)  1918D- 
707.  (Annotated) 

2.  Laws  1917,  c.  480,  creating  section 
1747m,  prohibiting  the  use  of  trading  stamp* 
except  those  having  a  stated  cash  value,  etc., 
does  not  deprive  persons  of  property  or  lib- 
erty without  due  process  of  law  or  equal 
protection  by  the  imposition  of  such  ex- 
cessive penalties  as  to  intimidate  against 
testing  its  legality.  Trading  Stamp  Cases 
(Wis.)     1918D-707.  (Annotated) 

3.  Laws  1917,  c.  480,  creating  section 
1747m,  is  not  unconstitutional  as  impairing 
the  obligation  of  contract ;  it  being  pros- 
pective in  its  operation  not  affecting  the  use 
of  trading  stamps  in  connection  witli  salea 
made  before  it  went  into  effect.  Trading 
Stamp    Cases    (Wis.)    1918I>-707. 

(Annotated) 

4.  The  provision  of  the  act  authorizing 
any  manufacturer  or  dealer  to  issue  any 
ticket  with  the  sale  of  goods,  bearing  on  ita 
face  a  stated  cash  value,  and  redeemable  on- 
ly in  cash  at  the  face  value  in  sums  of  2.> 
cents  or  over  by  the  person  issuing  the  same, 
does  not  violate  constitutional  principles  of 
classification,  and  does  not  constitute  an  in- 
vasion of  the  constitutional  right  to  the 
equal  protection  of  the  laws;  there  being  a 
well-defined  distinction  between  the  practice 
condemned  and  those  of  issuing  a  slip, 
ticket,  or  check  which  bears  upon  its  face 
a  stated  value  redeemable  only  in  cash  by 
the  person  issuing  them.  Trading  Stamp 
Cases   (Wis.)   1918D-707.  (Annotated) 


TRANSACTION      WITH      DECEASED 
PERSON. 

Competency  of  witness,  see  Witnesses,  7. 


TRANSCRIPT. 

Transcript  of  record  on  appeal,  see  Appeal 
AND  Ebbob,  18-21. 


TRANSFER    TAX. 

See  Taxation,  52-58. 


TRADE    UNIONS. 

See  Labob  Combinations. 

TRADING  STAMPS. 

1.  Validity  of  prohibitory  statute. — Laws 
1917,  c.  480,  creating  section  1747m  of  the 
statutes,  and  prohibiting  the  issuance,  in 
connection  with  the  sale  of  any  goods,  any 
trading  stamp  entitling  the  purchaser  in  ex- 
change therefor  to  any  goods  or  thing  of 
value  and  prescribing  penalties  for  violation 
of  the  act  is  an  appropriate  exercise  of  the 


TRAVELING    SALESMEN. 

Carrying  side  line  as  breach  of  contract,  see- 
Agency,  6,  7. 


TREES  AND  TIMBER. 

Rights  of  life  tenant  as  to  cutting  or  selling 
timber,  see  Life  Estates,  2-5. 

1.  Construction  of  option  contract. — Where 
an  option  timber  contract  is  silent  as  to 
when  the  purchaser  is  to  commence  to  cut 
the   timber,    the   cutting   and   removal   must 


THESPASSEKS— TRUSTS  AND  TRUSTEES. 


213 


he  within  a  reasonable  time.  Berry  v.  Mar- 
ion County  Lumber  Co.  (S.  C.)  1918E-877. 
2.  It  is  incumbent  on  the  purchaser  of  tim- 
ber under  an  option  contract  to  ascertain  the 
facts  and  circumstances  of  the  situation  of 
the  parties  when  he  purchases,  and  he  is 
charged  with  knowledge  of  the  proper  legal 
construction  of  the  contract  as  to  the  time 
when  the  cutting  should  commence.  Berry 
V.  Marion  County  Lumber  Co.  (S.  C.)  1918B- 
877. 

TRESPASSERS. 

Injury  to  trespassing  child  by  explosion  of 
dynamite  caps,  see  Explosions  and  Ex- 
pLosives,  5. 

TRIAL. 

See  Argument  and  Conduct  of  Counsel; 

Criminal  Law;  New  Trial. 
Error  in  submission  of  question  to  jury,  sea 

Appeal  and  Error,  85-88. 
Right  to  open  and  close,  see  Argument  and 

Conduct  or  Counsel,   1. 

1.  Continuance — Discretion  of  trial  court. 
— An  application  for  a  continuance  is  ad- 
dressed to  the  sound  discretion  of  the  trial 
court,  and  a  ruling  of  the  trial  court  denying 
a  continuance  will  not  be  disturbed  by  the 
appellate  court,  unless  an  abuse  of  this  dis- 
cretion is  clearly  shown,  but  where  such  an 
abuse  is  manifest,  especially  in  a  capital  case, 
it  is  the  duty  of  the  appellate  court  to  inter- 
fere, in  the  furtherance  of  justice.  More- 
head  V.  State   (Okla.)    1018C-416. 

2.  Order  of  proof. — Where,  upon  the  rec- 
ord as  a  whole,  evidence  is  admissible,  the 
order  of  its  introduction  is  immaterial.  Mc- 
Cue   V.   State    (Tex.)    1918C-674. 

3.  After  plaintiff  had  had  fair  opportunity 
to  assail  defendant's  character  for  truth,  and 
had  introduced  his  evidence  in  rebuttal,  in- 
cluding impeachment  thereof,  his  right  to 
offer  further  evidence  thereon  after  defendant 
had  testified  in  rebuttal  is  in  the  sound  dis- 
cretion of  the  trial  court.  Ray  v.  Shemwell 
(Ky.)    1<J18C-1122. 

4.  Opening  for  further  proof. — In  a  brok- 
er's action  for  commission  on  an  exchange 
of  properties,  the  court's  action  in  opening 
the  case  and  permitting  the  plaintiff  to  prove 
the  community  character  of  the  stock  ex- 
changed after  the  evidence  has  been  closed 
is  not  an  abuse  of  its  discretion.  Godefroy 
V.   Hupp    (Wash.)    1918E-494. 

5.  Offer  of  proof — Sufficiency. — In  a  brok- 
er's action  for  a  commission  on  a  sale  of 
properties,  defendant's  offer  to  show  wheth- 
er stock  was  community  or  separate  prop- 
erty, without  any  offer  of  specific  evidence 
or  any  statement  as  to  what  the  witness 
would  testify  to,  or  any  showing  that  the 
testimony  would  not  have  been  corrobora- 
tive, is  insufficient  as  a  predicate  for  error 
in  its  rejection.  Godefroy  v.  Hupp  (Wash.) 
1918E-494. 


6.  Nonprejudicial  statement  by  court. — A 
statement  by  the  trial  judge  held  not  to 
be  shown  to  have  been  prejudicial  to  the 
defendant.  State  v.  Wellman  (Kan.)  1918D- 
1006. 

7.  View  of  premises. — The  trial  court's  re- 
fusal to  permit  an  inspection  of  the  premises 
by  the  jury  is  held  not  to  be  an  abuse  of  its 
discretion  in  view  of  the  length  of  time  which 
had  elapsed  since  the  accident  and  the 
changes  that  might  have  taken  place  in 
the  appearance  of  the  premises.  Chambers 
V.  Minneapolis,  etc.  R.  Co.  (N.  D.)  1918C- 
954. 

8.  Weight  of  testimony  of  party. — In  de- 
ciding whether  a  case  should  have  gone  to 
the  jury  the  truth  of  the  plaintiff's  evidence 
tending  to  sustain  his  right  to  recover  must 
be  assumed  though  in  conflict  with  that  of 
defendant.  Parker  v.  Power  (Md.)  1918C- 
604. 

9.  If  the  plaintiff's  evidence  is  of  sufficient 
probative  force  to  enable  an  ordinary  intelli- 
gent mind  to  draw  a  rational  conclusion 
therefrom,  in  support  of  plaintiff's  right  to 
recover,  it  should  be  submitted  with  the 
other  evidence  to  the  jury  for  determination 
by  them  of  its  weight  and  value.  Parker 
v.  Power   (Md.)    1918C-604. 

10.  Extending  issue. — Where  defendant 
saw  fit  to  go  into  a  certain  subject  in  the 
trial  court,  it  must  be  held  to  have  given 
its  consent  to  the  consideration  by  the  court 
of  the  testimony  adduced  on  that  subject. 
Oregon-Washington  R.  etc.  Co,  v.  Spokane, 
etc.    R.    Co.    (Ore.)    1918C-991. 

11.  Necessity  of  finding — Issue  excluded  by 
laches. — ^Miere  the  defendant  is  barred  by 
his  laches  from  raising  the  question  wheth- 
er the  transaction  in  suit  was  a  mortgage 
or  not,  the  trial  court  is  justified  in  failing 
specifically  to  find  on  the  subject.  Elling 
V.  Fine    (Mont.)    1918C-752. 


TROVER. 

See  CoNVEBSiox. 

TRUST  DEEDS. 

See  Mortgages  and  Deeds  of  Trust. 

TRUSTS  AND  TRUSTEES. 

1.  Implied  or  Resulting  Trust: 

a.   In    (ieneral,     214. 

b.  Consideration   Furnished   for   Convey- 

ance to  Another,    214. 

c.  Concealment   of   Existence  of   Codicil, 

214. 

d.  Trust  in  Proceeds  of  Insurance,  214.     • 

e.  Proof  of  Trust: 

(1)  Parol  Evidence  Generally,  214. 

(2)  Sufficiency  of  Evidence,  214. 

2.  Spendthrift   Trust,    215. 

3.  Rights,   Powers   and   Liabilities  of  Trus- 

tee: 
a.  Sale  of  Property,  215. 


214 


ANX.  CAS.  DIGEST  (1918C-1918E). 


b.  Investments,  215. 

c  Holding  Fund  Together,   215. 

d.  Taxes    and    Expenses,   215. 

e.  Compensation,  216. 

f.  Settlement  of  Accounts,  216. 
4.  Administration  of  Trust: 

a.  Equitable  Jurisdiction,    216. 

b.  Change  of  Purpose  or  Terms  of  Trust, 
216. 

c.  Termination,    217. 

See  Life  Estates;  Wills.  * 

Bar  of  action  against  trustee  as  affecting 
rights  of  cestui  que  trust,  see  Limita- 
tion OF  Actions,  2,  3. 

Bight  of  party  to  contract  to  exercise  power 
of  sale  to  have  trust  declared  in  his 
favor,  sec  Powers,  2. 

Trustees  in  bankruptcy,  see  Bankbttptcy, 
1-3,  6. 

1.  Implied  or  Resulting  Trust. 

a.  In  General. 

1.  A  trust  may  be  express  or  implied,  and 
it  is  "implied"  when  deducible  from  the 
transaction  as  a  matter  of  intent.  Plum 
Trees  Lime  Co.  v.  Keeler  (Conn.)  1918E-831. 

2.  When  resulting  trust  begins. — A  re- 
sulting trust  results  from  the  transaction 
itself  at  the  moment  title  passes,  and  no 
oral  agreement  or  payments  before  or  after 
the  transaction  will  create  such  a  trust. 
Baughman  v.  Baughman  (111.)  1918E-895. 

b.  Consideration  Furnished  for  Conveyance  to 
Another. 

3.  Where  the  purchase  money  for  land  is 
paid  by  one  person  and  title  conveyed  to 
another,  the  law  construes  such  facts  as  con- 
stituting a  resulting  trust,  arising  not  from 
contract  or  agreement,  but  from  the  acts  of 
the  parties.  Baughman  v.  Baughman  (111.) 
1918E-895. 

4.  Purchase  by  wife  in  name  of  husband. — 
The  presumption  that  land  paid  for  by  a 
man  and  conveyed  to  his  wife  or  child  is  a 
gift  or  advancement  does  not  apply  to  pay- 
ments by  a  wife  for  lands  conveyed  to  her 
husband,  and  if  paid  from  her  separate  es- 
tate, a  resulting  trust  may  be  presumed. 
Baughman  v.  Baughman  (111.)  1918E-895. 

.833TaTjaT  awLA  -ei    (^^ot^ted) 

c.  Concealment  of  Existence  of  Codicil. 

5.  Where  an  executrix  procured  decree  of 
final  distribution  to  herself  as  beneficiary, 
but  failed  to  off'er  an  alleged  codicil  for  pro- 
bate, the  beneficiary  under  the  codicil  could 
not  recover  from  her  on  the  theory  that  a 
trust  was  raised  in  favor  of  such  beneficiary. 
Davis  V.  Seavey  (Wash.)   1918D-314. 

d.  Trust  in  Proceeds  of  Insurance. 

6.  WTiere  the  landlord  collects  insurance 
money  on  policies  payable  to  him  by  insur- 
ing loss  of  buildings  constructed  by  the 
tenant  whose  lease  will  not  expire  for  eight 
years,  an  implied  trust  is  raised  in  favor  of 
the  tenant  as  against  the  landlord  in  the  in- 


surance  money.     Plum    Trees   Lime    Co,  t. 
Keeler    (Conn.)    1918E-831. 

e.  Proof  of  Trust. 

(1)  Parol  Evidence  Generally. 

7.  Facts  constituting  a  resulting  trust  may 
"be  established  by  parol  evidence.  Baughman 
V.   Baughman    (111.)    1918E-895. 

8.  Where  plaintiff  agieed  on  foreclosure  of 
a  mortgage  on  defendant's  land  to  buy  in  the 
land  for  the  benefit  of  defendant  and  allow 
him  to  redeem  on  payment  of  amount  ad- 
vanced, and  in  that  manner  was  enabled  to 
secure  the  lands  for  the  amount  of  the  mort- 
gage which  was  for  a  sum  much  less  than  the 
value  of  the  lands,  it  appearing  that  other 
bidders  were  discouraged  and  that  defendant 
relaxed  his  efforts  to  secure  the  money  to 
buy  in  the  property,  plaintiff  cannot,  on  the 
ground  that  the  agreement  was  oral,  re- 
pudiate the  trust  and  take  the  lands  free 
from  any  claim  of  defendant,  for  that  would 
give  him  an  unconscionable  advantage. 
Strasner  v.  Carroll    (Ark.)    1917E-306. 

(Annotated) 

9.  Parol  trust  contradicting  deed. — To  per- 
mit a  grantor  to  show  a  parol  trust  in  him- 
self at  variance  with  the  written  terms 
of  his  deed  would  violate  the  statute  of 
frauds.  Campbell  v.  Sigmon  (N.  C.)  19180- 
40. 

(2)  Sufficiency  of  Evidence. 

10.  Parol  evidence  to  establish  a  resulting 
trust  must  be  clear,  strong,  and  unequivocal, 
and  establish  the  payment  of  purchase 
money  by  alleged  beneficiary  beyond  doubt, 
and  if  based'  upon  declarations  of  a  de- 
ceased person,  it  must  be  corroborated  by 
other  facts,  but  the  evidence  may  be  cir- 
cumstantial as  well  as  direct.  Baughman 
V.  Baughman  (111.)  1918E-895. 

11.  In  ejectment  to  recover  land,  the  evi- 
dence is  held  to  show  that  plaintiff  bought 
in  the  land  at  foreclosure  of  a  mortgage 
under  an  agreement  that  he  should  convey 
to  defendant,  the  owner,  on  receipt  of  the 
amount  advanced.  Strasner  v.  Carroll  (Ark.) 
1918E-306. 

12.  Evidence  of  furnishing  money  to  hus- 
band by  wife  from  her  separate  estate  ex- 
amined, and  is  held  not  to  show  whether 
her  money  bought  the  land,  or  was  merely 
used  to  pay  off  indebtedness  thereon,  and  to 
be  insufficient  to  entitle  beneficiary  to  a 
decree  declaring  and  enforcing  a  resulting 
trust.  Baughman  v.  Baughman  (111.)  1918E- 
896. 

13.  Evidence  as  to  conversations  of  chil- 
dren with  their  father  examined,  and  held 
to  show,  that  while  he  considered  that  chil- 
dren by  his  first  wife  had  some  claim  aris- 
ing from  money  furnished  by  their  mother 
upon  the  land  owned  at  the  time  of  second 
marriage,  yet  he  considered  he  owned  the 
land  in  his  own  right  to  dispose  of  as  he 
chose.  Baughman  v.  Baughman  (111.)  1918E- 
895. 


TKUSTS  AND  TEUSTEES. 


215 


2.  Spendthrift   Trust. 

14.  Sights    of   creditors   of   beneficiary.— 

Where  a  testator  created  a  trust  directing 
the  payment  of  the  income  to  his  son  for 
life,  remainder  to  the  son's  children,  with  di- 
rections that  distribution  of  the  principal 
should  not  in  any  event  be  made  within 
twenty-one  years  after  the  death  of  the 
son,  and  that  every  payment  of  the  income 
or  principal  should  be  made  personally  to 
the  persons  to  whom  they  were  given  or  de- 
vised, or  upon  their  order,  free  from  the 
interference  or  control  of  creditors,  and  nev- 
er by  way  of  anticipation  or  assignment, 
creditors  of  a  beneficiary,  who  had  been  dis- 
charged as  a  bankrupt,  cannot  reach  his 
interest  in  the  principal  or  income,  the 
trust  being  a  valid  spendthrift  trust.  Boston 
Safe  Deposit,  etc.  Co.  v.  Collier  (Mass.) 
1918C-962.  (Annotated) 

3.  Sights,  Powers  and  Liabilities  of  Trustee. 

a.  Sale  of  Property. 

15.  Proceeds  of  sale  as  income. — ^Where 
testator,  after  making  specific  bequests,  de- 
vised the  rest  of  his  property  in  trust,  and 
after  bequeathing  various  annuities  provided 
for  payment  of  interest  on  a  large  sum  to 
a  charity,  but  made  such  payments  subject 
to  the  annuities  previously  given,  the  pro- 
ceeds of  the  sale  of  vacant  real  estate  should 
be  treated  as  principal,  rather  than  as  in- 
come; this  being  particularly  true,  as  the 
income  met  all  of  the  requirements  of  the 
annuities  and  was  sufficient  to  make  up  the 
maximum  annual  pavment  given  the  charity. 
Parkhurst  v.  Ginn   (Mass.)   1918E-982. 

b.  Investments. 

16.  Testamentary  trustees,  who  are  re- 
quired to  manage  the  estate  and  make  pay- 
ments of  income  to  various  beneficiaries,  are 
by  implication  given  power  to  invest  and 
keep  safely  and  productively  invested  the 
trust  funds,  for  the  testator  must  have 
known  that  his  investments  could  not  al- 
ways continue  the  same.  Parkhurst  v.  Ginn 
(Mass.)    1918E-982. 

17.  Stock  dividends. — ^Under  a  will  devis- 
ing one-half  of  the  residue  of  real  and  per- 
sonal property  to  one  in  fee,  and  the  other 
half  in  trust,  with  power  to  sell,  transfer, 
invest,  or  reinvest,  to  pay  over  the  income  to 
the  life  tena  t.  with  remainder  over  to  the 
first  devisee  on  her  deatli  without  issue, 
stock  distributions  made  on  the  reorganiza- 
tion of  corporations  in  which  the  testatrix 
held  stock,  representing  merely  an  enhance- 
ment in  the  value  of  the  corporate  assets 
from  good  management  and  the  growth  of 
trade,  and  not  the  accumulation  of  earnings, 
together  with  the  trustees'  purchase  of  the 
securities  of  those  companies  as  an  invest- 
ment of  principal  assets,' are  a  part  of  the. 
corpus  of  the  estate,  rather  than  of  the  in- 
come. Poole  V.  Union  Trust  Co.  (Mich.) 
1918E-622.  (Annotated) 

c.  Holding  Fund  Together. 

18.  Several  trusts. — Where  a  testator  de- 


vises and  bequeaths  the  rest  and  residue  of 
his  property  in  trust,  directing  the  trustees 
to  pay  various  annuities  to  members  of  his 
family,  and  then  pay  the  income  on  a  large 
portion  of  his  estate  to  a  charity,  but  directs 
that  the  specific  annuities  shall  first  be  paid, 
the  entire  property  should  be  held  in  one 
trust  fund,  liable  first  for  the  satisfaction  of 
the  annuities.  Parkhurst  v.  Ginn  (Mass.) 
1918E-982. 

19.  Where  testator's  sons  have  not  become 
entitled  to  payments  of  income  under  a  par- 
ticular clause  of  his  will,  and  such  payments 
depend  on  a  contingency,  the  trustees  will 
not,  there  being  no  present  obligation  on  their 
part  to  set  aside  any  of  the  income  for  this 
purpose,  be  required  to  so  so,  for  they  have 
a  broad  discretion,  with  which  the  court  will 
not  interfere.  Parkhurst  v.  Ginn  (Mass.) 
1918E-982. 

20.  Where  a  testator,  who  owned  a  large 
interest  in  a  publishing  partnership,  directs 
that  on  certain  contingencies  a  number  of 
shares,  the  interest  of  the  partners  being, 
for  purposes  of  bookkeeping,  divided  into 
shares,  shall  be  delivered  to  his  two  sons, 
the  trustees,  who  are  authorized  to  continue 
the  investments  in  the  partnership,  are  not 
bound  to  set  aside  from  the  general  trust 
fund  the  amount  of  the  shares  to  which  the 
sons  may  become  entitled.  Parkhurst  v. 
Ginn   (Mass.)   1918E-982. 

21.  Where  testator,  after  making  various 
bequests,  devised  and  bequeathed  all  the  resi- 
due of  his  property  to  trustees,  to  hold  in 
trust  for  payment  of  specified  annoiities,  and 
for  the  payment  of  the  income,  as  nearly 
as  the  trustees  could  conveniently  reckon  it, 
of  $800,000,  not  exceeding  $40,000  per  year, 
to  the  World's  Peace  Foundation,  the  trustees 
should  not  set  apart  any  of  the  trust  prop- 
erty as  a  separate  fimd  for  the  benefit  of  the 
World  Peace  Foundation;  other  parts  of  the 
will  stating  that  the  specific  annuities  should 
first  be  paid,  and  the  provisions  as  to  pay- 
ment to  the  foundation  indicating  that  no 
separate  funds  should  be  created  for  its 
benefit.  Parkhurst  v.  Ginn  (Mass.)  1918E- 
982. 

22.  The  payment  to  the  World  Peace 
Foundation  should  be  that  proportionate 
part  of  the  total  net  income  of  the  fund 
which  $800,000  bears  to  the  entire  principal, 
but  not  exceeding  $40,000  annually.  Park- 
hurst V.  Ginn  (Mass.)   1918E-982. 

d.  Taxes  and  Expenses. 

23.  "VMiere  investments  of  trust  funds  are 
subject  to  annual  taxes,  these  should  be  paid 
as  part  of  the  expenses  of  the  trust,  and  are 
to  be  deducted  before  the  net  income  can 
be  ascei-tained.  Parkhurst  v.  Ginn  (Mass.) 
1918E-982.  (Annotated) 

24.  The  general  rule  is  that  taxes  and 
carrying  charges  on  real  estate  held  by  trus- 
tees for  a  life  beneficiary  are  to  be  paid  out 
of  the  income  of  the  trust  estate,  and  are  not 
properly  chargeable  to  capital  account,  un- 
less the  will  contains  unequivocal  directions 
to  the  contrary.  Spencer  v.  Spencer  (N".  Y.) 
1918E-943.  (Annotated) 


216 


ANK  CAS.  DIGEST  (1918C-1918E). 


25.  Where  testator  recited  his  one-third 
interest  in  a  farm,  estimated  to  be  worth 
$400,000,  and  provided  that  on  a  sale  be- 
fore his  death  or  by  his  executors  thereafter 
a  son  should  receive  one-fourth  of  the  pro- 
ceeds, and  gave  his  residuary  estate  in  trust 
for  investment,  and  to  pay  over  the  net 
annual  income  to  his  widow  for  life,  and  on 
her  death  to  pay  the  net  annual  income  to 
his  son,  and  gave  the  widow  a  legacy  of 
$100,000,  payable  at  once,  and  left  him  sur- 
viving his  widow,  a  son,  and  grandson,  and 
personal  property  valued  at  $156,802.50,  cer- 
tain city  property  and  a  residence  in  S'ew- 
port,  it  is  held  that  the  taxes  and  carrying 
expenses  and  assessments  on  the  farm,  which 
was  unproductive,  leaving  the  widow  prac- 
tically no  net  income,  were  paj'able,  not  only 
of  the  income,  but  out  of  the  prin,cipal. 
Spencer  v.  Spencer  (X.  Y.)   1918E-n43. 

26.  Premiums  on  bonds. — Under  Rev.  Laws, 
c.  150,  §  15,  declaring  that  monej'  paid  with 
the  approval  of  the  judge  of  probate  to  a 
surety  on  an  official  bond  given  the  court 
may  be  allowed  as  a  charge  against  the 
estate,  the  payments  of  premiums  on  the 
bonds  of  testamentary  trustees  should  be 
made  out  of  income,  and  not  out  of  the  prin- 
cipal. Parkhurst  v.  Ginn  (Mass.)  1918E- 
982.  (Annotated) 

27.  Permanent  improvements. — Where  a 
testator  left  the  residue  of  his  estate  con- 
sisting principally  of  unproductive  land  to 
a  son  subject  to  the  payment  of  annuities, 
legacies,  and  other  bequests,  and  "also  sub- 
ject, if  necessary,  to  the  sale  by  my  execu- 
tors and  their  successors,  from  time  to  time, 
of  portions  thereof,  for  the  payment  of  taxes, 
assessments,  and  expenses,"  and  subject  to 
an  executory  limitation  in  the  event  that 
testator's  wife  or  younger  daughter  sur- 
vived the  son  and  his  descendants,  the  ex- 
ecutors being  given  authority  to  manage  the 
estate  so  long  as  any  of  the  charges  remain 
in  force  and  effect,  all  charges  having  ceased 
to  exist  except  the  annuity  to  the  younger 
daughter,  the  property  being  owned  in  fee 
simple  by  the  children  of  the  son  subject  to 
the  annuity  and  the  executory  limitation, 
the  cost  of  permanent  improvements  consist- 
ing of  sewer,  curbing  assessments,  and  grad- 
ing, should  be  charged  to  the  corpus  of  the 
trust.     Sheffield  v.  Cooke   (R.  I.)    1918E-961. 

(Annotated) 

28.  Inheritance  taxes. — Where  there  was 
no  sequestration  of  any  part  of  a  joint  trust 
fund,  and  it  was  all  held  as  a  unit,  though 
a  part  of  the  income  was  bequeathed  as  a 
charity,  and  other  portions  to  various  annui- 
tants, inheritance  taxes  assessed  against 
such  annuities  must,  in  view  of  St.  1912,  c. 
678,  §  1,  as  amended  by  St.  1913,  c.  498, 
declaring  that  all  taxes  under  the  act  shall 
be  paid  out  of  and  be  chargeable  to  capital, 
instead  of  net  income,  unless  provided  in 
A  will  or  other  instrument  creating  the  grant, 
be  paid  out  of  the  capital  fund.  Parkhurst 
V.   Ginn    (Mass.)    1918E-982.        (Annotated)    ' 

e.  Compensation. 
39.  Compensation  of  the  trustees  for  serv- 


ices in  converting  the  unproductive  real  es- 
tate into  personalty  should  be  charged  to  the 
principal  of  the  estate.  Sheffield  v.  Cooke 
(R.  I.)    1918E-961.  (Annotated) 

30.  Where  there  is  a  fund  in  which  all 
the  beneficiaries  are  interested,  the  appor- 
tionment of  the  trustees'  compensation  in 
making  permanent  improvements  can  be 
made  by  paying  the  compensation  out  of  the 
principal.  Sheffield  v.  Cooke  (R.  I.)  1918E- 
961.  (Annotated) 

31.  Compensation  of  the  trustees  for  serv- 
ices rendered  in  making  permanent  improve- 
ments on  portions  of  the  estate  should  be 
charged  to  the  principal  of  the  estate.  Shef- 
field V.  Cooke  (R.  I.)  1918E-961. 

(Annotated) 

32.  Although,  where  trustees  are  accus- 
tomed to  pay  over  net  income  to  beneficiaries 
each  year,  thej'  are  entitled  to  deduct  the 
commissions  which  are  properly  chargeable 
against  income  annually  before  making  their 
payments,  their  compensation  may  be 
charged  to  principal  if,  in  the  discretion  of 
the  court,  the  circumstances  so  warrant. 
Sheffield  v.  Cooke  (R.  I.)    1918E-961. 

(Annotated) 

f.  Settlement  of  Accounts. 

33.  Under  Gen.  St.  1902,  §  383,  every  test- 
amentary trustee,  unless  excused  by  the  will 
creating  the  trust,  must  account  annually 
to  the  probate  court.  Hooker  v.  Goodwin 
(Conn.)    1918D-1159. 

34.  On  accounting .bv  trustee  under  will, 
under  Gen.  St.  1902,  §  '383,  any  party  in  in- 
terest mav  question  items.  Hooker  v.  Good- 
win  (Conn.)   1918D-1159. 

4.  Administration  of  Trust. 

a.    Equitable    .Jurisdiction. 

35.  Change  of  management. — Where  trus- 
tees cannot  so  manage  a  trust  fund  as  to 
carry  out  the  plain  intentions  of  the  testator 
under  circumstances  clearlj'  not  contem- 
plated by  him.  a  court  of  equity  may  direct 
a  change  in  the  management  of  the  trust 
fund  to  carrj^  into  effect  the  manifest  inten- 
tion of  the  testator.  Stephens  v.  Collison 
(111.)   1918D-559.  (Annotated) 

b.     Change  of  Purpose  or  Terms  of  Trust 

36.  The  court  has  no  authority  to  change 
the  title  of  the  trust  property  and  destroy 
the  trust  itself  by  compelling  a  beneficiary 
to  accept  a  compromise  settlement  of  pend- 
ing litigation.  Stephens  v.  Collison  (111.) 
1918D-559.  (Annotated) 

37.  A  court  of  equity  may  define  but  can- 
not alter  a  trust  created  by  will  or  the 
powers  of  the  trustee  thereunder,  except 
when  necessary  to  preserve  the  trust  from 
destruction;  and  even  then  it  has  no  author- 
ity to  defeat  or  destroy  such  trust.  Ste- 
phens V.  Collison   (111.)   1918D-559. 

38.  A  court  of  equity  has  no  authority  to 
compel  a  beneficiary  under  a  will  to  accept 
a  compromise  settlement  of  a  trust  estate  in 
disregard  or  abrogation  of  the  terms  of  the 


TRUTH— U:NnTED  STATES. 


217 


trust,  notwithstanding  that  it  would  be  for 
the  best  interests  of  all  concerned,  and  that 
all  other  beneficiaries  had  consented.  Ste- 
phens V.  Collisou   (111.)    1918C-559. 

(Annotated) 

c.  Termination. 

39.  Setting  aside. — In  an  action  to  set 
aside  a  deed  ot  trust  executed  by  plaintiff 
after  she  had  renounced  the  trust  provisions 
of  her  husband's  will  and  claimed  her  dower 
and  distributable  share  of  his  estate,  the 
effect  of  which  deed  was  to  relinquish  sub- 
stantially all  that  the  renunciation  of  the 
will  brought  her,  and  to  retain  substantially 
the  same  rights  in  the  income  of  her  de- 
ceased husband's  estate  as  had  been  given 
her  by  his  will,  the  evidence  is  held  to  show 
that  the  deed  had  been  procured  by  undue 
influence  of  the  trustee  in  order  to  avoid 
any  injury  to  it  is  a  financial  institution 
which  might  arise  from  the  renunciation  of 
the  first  trust.  Beard  v.  Beard  (Ky.)  1918C- 
832.  (Annotated) 

40.  Right  to  revoke. — Where  a  deed  or 
other  instrument  creating  a  trust  is  not 
revocable  by  the  maker  by  its  terms,  and  is 
entered  into  understandingly  by  the  parties, 
and  is  not  procured  by  undue  influence  or 
affected  by  fraud,  it  cannot  be  revoked  by 
the  maker  without  the  consent  of  all  the  par- 
ties to  it,  nor  can  its  terms  be  altered  by  the 
maker  except  by  the  consent  of  the  cestui 
que  trustent.  Beard  v.  Beard  (Ky.)  19180- 
832. 

41.  Right  of  parties  to  terminate. — An  ac- 
tive trust,  created  as  a  protection  to  the 
beneficiary,  because  of  his  inexperience,  im- 
providence, inability  to  manage  his  estate, 
or  for  any  other  purpose  not  illegal  which 
the  benefactor  may  deem  wise  to  carry  out 
his  intentions,  must  be  executed,  and  cannot 
be  destroyed,  even  by  a  conveyance  by  the 
trustee  to  the  beneficiary.  Stewart's  Es- 
tate (Pa.)  1918E-1216. 


TRUTH. 

As  defense  to  libel,  see  Libel  and  Slandeb, 
36-43,  48-54. 


TUITION. 

Compelling    admission    of    pupil    to    school 
without  payment,  see  Schools,  1. 


TURNOUTS. 

See  Street  Railways,  1,  2. 

TYPHOID. 

Liability  of  water  company  for  injuries  from 
typhoid  germs  in  water  supply,  see 
Waterworks  and  Water  Companies, 
4-11. 


ULTRA   VIRES. 

Retention  of  benefits  by  city  on  repudiation 
of  ultra  vires  contract,  see  Municipal 
Corporations,  10. 


UNDUE    INFLUENCE. 

On  grantor  in  deed  creating  trust,  see  Trusts 

AND  Trustees,  39,  40. 
On  testator,  see  Wills,  9-10. 

1.  "Undue  influence"  is  a  kind  of  mental 
coercion  which  destroys  one's  free  agency 
and  constrains  him  to  do  that  which  is 
against  his  will,  and  that  he  would  not  have 
done  if  left  to  his  own  judgment  and  voli- 
tion, so  that  his  act  becomes  the  act  of  one 
exerting  the  influence  rather  than  his  own 
act,  rendering  his  deed,  etc.,  void.  Beard 
V.  Beard  (Ky.)   1918C-832. 

2.  An  influence,  acquired  by  modest  per- 
suasion, arguments  addressed  to  the  under- 
standing and  appeals  to  the  affections,  not 
destroying  free  agency,  does  not  amount  to 
undue  influence,  but  the  influence  obtained 
by  excessive  importunity,  superiority  of  will 
or  mind  destroying  free  agency,  etc.,  avoids 
the  deed,  etc.,  thereby  procured.  Beard  v. 
Beard  (Ky.)   1918C-832. 


UNIONS. 

See  Larob  CoxreiNATioNS. 

UNITED    STATES. 

As  necessary  party  in  suit  to  cancel  deed 
from  state  where  grantee  relinquished 
title  to  United  States,  see  Public  Lands, 
15-17,  19. 

Fee  for  collection  of  civil  war  damage  claims, 
see  Attorneys,  6-10. 

1.  Determination  of  tests  under  contract. 
— Where  a  contract  for  five  or  six  inch  rapid 
fire  guns  contemplated  the  making  and  test- 
ing of  a  type  gun  of  each  caliber,  and  made 
acceptance  of  additional  guns  dependent  on 
passage  of  tests  by  the  type  guns,  the  chief 
of  ordnance  and  the  secretary  of  war,  while 
authorized  to  determine  disputes,  are  bound 
to  decide  candidly  and  reasonably  whether 
the  tests  were  passed  satisfactorily.  Saal- 
field  V.  U.,S.  (U.  S.)  1918E-1.       (Annotated) 

2.  Under  a  contract  for  furnishing  the 
I'nited  States  with  wire-wound  rapid  fire 
guns  of  five  and  six  inch  caliber,  contemplat- 
ing the  making  and  testing  of  a  type  gun 
of  each  caliber,  and  that  the  acceptance  of 
additional  guns  should  be  dependent  on  the 
satisfactory  passage  of  the  tests  of  the  type 
guns,  it  is  held,  that  there  was  nothing  to 
show  that  the  secretary  of  war  or  chief  of 
ordnance  acted  in  bad  faith  or  under  a  gross 
mistake  in  the  determination  of  the  result 
of  the  tests.  Saalfield  v.  U.  S.  (U.  S.) 
1918E-1.  (Annotated) 

3.  In  such  case,  it  is  held  that  the  gov- 


218 


AXK  CAS.  DIGEST  (19180-1918E). 


ernment  by  its  delay  did  not  waive  its  right 
to  annul  the  contract,  nor  was  that  right 
suspended  until  a  report  should  be  made  by 
experts  on  the  technical  problems  involved 
in  the  construction  of  the  gun.  Saalfield  v. 
U.  S.    (U.  S.)    1918E-1.  (Annotated) 

4.  Additional  compensation. — The  cost  of 
the  last  two  of  three  unsuccessful  temporary 
dams  erected  by  the  contractor  for  a  public 
work  at  a  place  designated  by  the  govern- 
ment engineer  in  charge,  and  the  charges  for 
superintendence  during  the  time  consumed 
in  constructing  them,  is  not  chargeable  to 
the  United  States,  where  the  contract  was 
silent  as  to  temporary  structures,  and  the 
site  designated  by  the  engineer  seems  to 
have  been  as  good  as  any  other,  the  final 
success  on  a  new  site  having  been  achieved 
by  new  methods,  not  by  change  of  place, 
there  being  nothing  to  show  that  the  new 
methods  could  not  earlier  have  been  adopted. 
U.  S.  V.  Normile   (U.  S.)    1918E-34. 

(Annotated) 

6.  The  increased  cost  of  the  necessary  la- 
bor and  materials  for  a  public  work,  due  to 
the  breaking  out  of  the  war  of  1898  with 
Spain,  is  not  chargeable  to  the  United  States 
because  of  an  unexplained  delay  on  its  part 
in  notifying  the  contractors  that  they  could 
begin  work,  where  the  notice  was  given  in 
time  to  begin  work  as  early  as  contemplated 
by  the  specifications,  and  the  prices  had  ad- 
vanced before  the  supposed  neglect  on  the 
part  of  the  government  began,  and  the  con- 
tractors had  not  the  facilities  to  accumulate 
materials,  even  if  they  had  been  notified  at 
an  earlier  date.  U.  S.  v.  Normile  (U.  S.) 
1918E-34.  (Annotated) 

6.  Unexpected  obstacles  to  performance  of 
contract. — The  encountering  of  the  stumps 
and  roots  of  a  submerged  forest  in  excavat- 
ing a  channel  for  the  United  States  does  not 
relieve  the  contractor  from  liability  under 
his  contract  to  pay  the  stipulated  liquidated 
damages  and  the  additional  cost  of  super- 
vision and  inspection  in  case  the  work  is 
not  finished  in  time,  where  the  chief  engi- 
neer refused  to  sanction  any  extension  of 
time,  and  the  contract,  which  makes  time  of 
its  essence,  provides  that  if  completion  is 
delayed  by  strikes,  epidemics,  quarantine  re- 
strictions, or  by  the  "abnormal  force  or  vio- 
lence of  the  elements,"  additional  time  may, 
with  the  sanction  of  the  chief  engineer,  be 
allowed,  the  specifications  further  stating 
that  the  time  allowed  is  considered  sufficient 
'unless  extraordinary  and  unforeseeable  con- 
ditions supervene,"  and  warning  each  bidder 
to  examine  and  decide  for  himself  the  char- 
acter of  the  material  to  be  excavated,  as  no 
allowance  will  be  made  except  for  the  re- 
moval of  such  nmterials  as  "solid  rock,  large 
boulders,  and  compact  gravel."  Maryland 
Dredging,  etc.  Co.  v.  U.  S.  (U.  S.)  1918E-32. 

(Annotated) 

VALUE. 

See  Evidence,  7. 

Misrepresentation   as   to   value,   see   Fbaud, 
3-9. 


Proving  value  of  automobile,  see  Evidence,  7 
Valuation  of  property  for  purposes  of  taxa- 
tion, see  Taxation,  5-20,  49. 


VARIANCE. 

Bee  Pleading,  23,  24. 

Effect  of  variance  of  description  in  decree 
quieting  title  from  description  in  instru- 
ments on  which  plaintiff  relied,  see  Qui- 
eting Title,  1. 


VENDOR  AND   PURCHASER. 

1.  Requisites  and  Validity  of  Contract,  218. 

2.  Mutual  Rights  and  Liabilities  of  Parties: 
a.  Rescission  of  Contract,  219. 

b.  Title  Called  for  by  Contract,  219. 

3.  Rights  of  Parties  against  Third  Persons: 

a.  Bona   Fide  Purchasers,  219. 

b.  Rights    and    Liabilities    of    Purchaser 

from  Vendee  in  Executory  Contract, 
220. 

See   Lis   Pendens;    Specific   PEatFOEiiANCB. 

Sale  of  personalty,  see  Sales. 

Deed  by  partner  as  contract  to  convey,  see 

Partnership,  4. 
Effect  of  agent's  deed  as  contract  to  convey, 

see  Agency,  14. 

1,  Requisites  and  Validity  of  Contract. 

1.  Option  contract — Right  to  enforce. — A 
contract  supported  by  valuable  considera- 
tion, which  grants  a  party  thereto  the  right 
to  purchase  the  land  of  the  adverse  party  at 
a  fixed  price  per  acre,  provided  the  party 
makes  a  survey  to  ascertain  the  acreage  at 
his  own  expense,  and  exercises  the  option  to 
purchase  within  a  specified  time,  and  which 
binds  the  adverse  party  to  convey  a  good 
title  in  the  event  the  right  to  purchase  is 
exercised  within  the  life  of  the  contract,  is 
binding  on  both  parties,  enforceable  at  the 
option  of  the  party  or  his  assignee,  if  exer- 
cised by  making  a  survey  and  paying  the 
price  within  the  time  fixed.  Fields  v.  Vizard 
Invest.   Co.    (Ky.)    1918D-3.56. 

2.  Time  for  exercise  of  option. — A  con- 
tract, supported  by  a  valuable  consideration 
which  binds  the  owner  of  land  to  convey 
the  same  to  the  purchaser  on  demand  ami 
payment  of  the  price  within  a  specified  time, 
and  which  does  not  bind  the  purchaser  to 
take  the  land  at  any  time,  and  which  ex- 
pressly provides  that  the  contract,  unless  the 
privilege  of  purchase  is  exercised  within  the 
specified  time,  shall  be  void,  is  an  option  to 
purchase  at  the  price  fixed  for  the  definite 
time;  and,  where  no  offer  has  been  made  by 
the  purchaser  or  his  assignees  to  exercise  the 
option  until  after  the  expiration  of  the  time, 
the  contract  is  not  enforceable  against  the 
owner.  Fields  v.  Vizard  Invest.  Co.  (Ky.) 
1918D-336. 

3.  A  contract  granted  to  a  party  thereto 
and  his  assigns  the  option  to  purchase  land 
at  a  fixed  price  per  acre,  provided  the  party 


VEXDOR  AXD  PURCHASER. 


219 


made  a  survey  to  ascertain  the  acreage  at  his 
own  expense,  and  exercised  the  option  to  pur- 
chase within  a  specified  time,  and  bound  the 
owner  to  convey  a  good  title  in  the  event 
the  right  to  purchase  was  exercised  within 
the  time.  An  assignee  made  a  survey  at  his 
own  expense  within  the  time,  and  notified 
the  owner  of  his  intention  to  purchase.  The 
parties  believed  that  there  was  a  cloud  on 
the  title  by  reason  of  an  outstanding  con- 
tract, and  the  owner  orally  extended  to  the 
assignee  the  time  of  the  option,  to  permit 
him  to  procure  an  assignment  of  the  out- 
standing contract.  It  is  held  that,  assuming 
that  the  option  was  validly  extended  for  a 
reasonable  time,  the  assignee,  on  procuring 
the  assignment  of  the  outstanding  contract, 
must  complete  the  purchase  without  further 
delay,  and  where  he  delayed  a  month  without 
taking  any  steps  to  complete  the  purchase, 
he  forfeited  his  rights  under  the  contract 
and  extension.  Fields  v.  Vizard  Invest.  Co. 
(Ky.)    1918D-336. 

2.  Mutual  Rights  and  Liabilities  of  Parties. 

a.  Rescission  of  Contract. 

4.  Misrepresentation  of  location  of  land. — 

Misrepresentations  as  to  the  location  of  real 
estate,  whether  made  innocently  or  with 
fraudulent  intent,  entitle  a  person  acquiring 
the  land,  relying  upon  the  statements,  to 
rescind  the  transaction  and  recover  the 
amount  paid  by  him  on  the  purchase  price. 
Wilson  V.  Robinson   (N.  Mex.)    1918C-49. 

5.  Misrepresentation  of  acreage. — Where 
the  seller  of  a  ranch,  who  had  lived  thereon 
for  forty  years,  represented  that  it  had  about 
sixty  acres  of  good  bottom  land,  whereas  in 
fact  there  were  only  about  forty,  while  the 
bottom  land  was  so  placed  that  it  was  diffi- 
cult to  estimate  its  quantity  on  inspection, 
the  buyer  is  entitled  to  rescind.  Jeffrey  v. 
Weekley   (Ore.)    lfll8D-690. 

6.  Effect  of  possession. — Where  title  is  de- 
fective, delivery  of  a  warranty  deed  to  one 
who  has  gone  into  possession  on  representa- 
tion of  good  title  under  contract  of  bargain 
and  sale,  but  providing  for  "apt  and  ])roper 
deed  with  covenants  of  general  warranty," 
does  not  render  the  contract  an  executed  one, 
BO  as  to  prevent  a  rescission  of  the  contract, 
in  the  absence  of  waiver.  Cross  v.  Buskirk- 
Rutledge  Lumber  Co.   (Tenn.)    19180-083. 

(Annotated) 

7.  In  a  suit  by  a  purchaser  for  rescission 
of  contract  of  sale,  the  fact  that  the  pur- 
cliaser  remained  in  possession  of  the  iiroperty 
after  tender  to  the  vendor  by  way  of  rescis- 
sion is  matter  merely  addressed  to  the  court 
in  adjusting  the  rights  of  the  parties  in  re- 
lation to  rents,  improvements,  interest,  or 
the  like,  and  such  retention  of  possession 
does  not  necessarily  defeat  the  claim  of  re- 
scission. Jeffreys  v.  Weekley  (Ore.)  1918D- 
690. 

b.  Title  Called  for  by  Contract. 

8.  Excessive  demands. — It  is  not  a  valid 
acceptance  of  an  option  on  the  "Eagle  Block" 
to  demand  a  deed  with  a  description  incltid- 


ing  all  the  party  wall  and  part  of  the  ad- 
joining block.  Weadock  v.  Champe  (Mich.) 
1918C-874. 

9.  One  given  an  option  on  the  Eagle  Block, 
which  with  the  adjoining  building  iias  party 
wall  rights  in  the  separating  wall,  unevi- 
denced,  however,  by  any  recorded  agieement, 
cannot  by  his  acceptance  demand  a  deed  pro- 
viding that  it  is  subject  to  existing  recorded 
party  wall  agreements;  thus  excluding  all 
party  wall-rights  for  which  there  is  no  agree- 
ment of  record.  Weadock  v.  Champe  (Mich.) 
191SC-874. 

10.  One  given  an  option  on  the  Eagle 
Block,  a  building  separated  by  party  walls 
from  buildings  on  each  side,  is  not  entitled 
to  have  in  his  deed  an  erroneous  alterna- 
tive description  contained  in  the  deed  to  the 
seller.  Weadock  v.  Champe  (Mich.)  1918C- 
874. 

11.  Deed  reciting  implied  rights. — One 
given  an  option  on  a  building  cannot  object 
to  the  deed  tendered  because  of  a  recital  of 
party  wall  rights  of  the  parties  that  would 
have  been  implied  without  such  provision. 
Weadock   v.   Champe    (Mich.)    1918C-874. 

12.  Notice  of  outstanding  leases. — ^Defend- 
ant, who  gave  plaintiff  an  option  on  a  build- 
ing, having  delivered  to  him  for  examina- 
tion the  existing  leases  thereon,  and  he 
having  retained  them  for  sometime  and  ex- 
pressed himself  satisfied  therewith,  the  deed 
tendered  by  the  defendant  is  not  objection- 
able because  of  the  provision  making  it  sub- 
ject to  existing  tenancies,  though  the  leases 
are  not  recorded.  Weadock  v.  Champe 
(Mich.)    1918C-874. 

13.  Title  depending  on  parol. — Under  a 
contract  for,  a  warranty  deed,  delivery  of  a 
warranty  deed,  where  the  title  of  the  grant- 
or depends  on  parol  evidence  of  adverse  pos- 
session, is  not  sufficient  to  render  contract 
executed,  in  absence  to  waiver,  because  title 
must  be  good  as  founded  on  the  records, 
and  not  on  facts  not  of  record.  Cross  v, 
Buskirk-Rutledge  Lumber  Co.  (Tenn.) 
1918D-983. 

3.  Rights  of  Parties  against  Third  Persons. 

a.  Bona    Fide    Purchasers. 

14.  Purchase  of  equitable  title. — The  de- 
fense of  bona  fide  piuchaser  without  notice 
is  not  applicable  to  the  purchase  of  an  equity 
onlv  in  land.  Tobey  v.  Kilbourne  (U.  S.) 
1918C-470.  (Annotated) 

15.  The  purchaser  of  the  equitable  interest 
of  the  mortgagee  of  a  part  owner  of  timber 
lands  standing  in  the  name  of  a  timber  com- 
pany purchased  at  his  peril,  acquiring  the 
property  burdened  with  every  prior  equity, 
more  especially  where  the  purchase  was 
under  judicial  sale,  since  the  doctrine  which 
protects  bona,  fide  purchasers  without  no- 
tice is  applicable  solely  to  purchasers  of 
legal  titles.  Thomas  v.  Scougale  (Wash.) 
1918C-452.  (Annotated) 

16.  Generally,  the  equity  of  an  innocent 
purchaser  cannot  be  asserted  without  the 
ownership  of  a  legal  title,  bul  a  bona  fide 
purchase    for   value    and    without    notice    of 


220 


ANN.  CAS.  DIGEST  (1918C-1918E). 


what  constitutes  the  legal  title  is  a  de- 
fense to  a  suit  to  enforce  a  paramount 
equitable  title.  Hennessy  v.  Blair  (Tex.) 
1918C-474.  (Annotated) 

17.  Purchaser  of  fraudulent  patent. — A 
transfer  of  a  certificate  for  jjublic  land  was 
forged,  but  the  transferee  obtained  a  patent 
from  the  state,  and  then  conveyed  the  land 
to  a  third  peison  without  actual  notice  of 
the  fraud.  There  was  nothing  on  the  face 
of  the  patent  or  in  the  record  of  the  land 
office  giving  notice  that  the  patent  was 
fraudulently  obtained.  An  inquiry  would 
have  disclosed  a  holding  by  the  patentee  and 
his  grantees  for  many  vears  during  which 
there  was  no  claim,  but  ownership  by  the 
holder  of  the  certificate  or  his  heirs.  It  is 
held  that,  as  imder  the  doctrine  of  bona 
fide  purchase  the  patent  constituted  "title," 
the  rights  of  the  bona  fide  purchaser  could 
not  be  overthrown  by  the  heirs  of  the  own- 
ers of  the  certificate.  Hennessy  v.  Blair 
(Tex.)    11)180-474. 

18.  Reformation. — ^Xo  reformation  can  be 
made  in  the  description  contained  in  a  deed 
to  property  which  Jias  passed  into  the  hands 
of  a  bona  fide  purchaser  for  value  without 
notice.  Robertson  v.  Smith  (Mich.)  1918D- 
145.  (Annotated) 

19.  Notice  ^of  prior  rights. — Where  an  in- 
nocent purchaser  for  value  without  notice 
has  knowledge  that  the  barn  of  an  adjoin- 
ing owner  projects  slightly  over  the  bound- 
ary line,  he  is  charged  with  notice  only  of 
such  owner's  claim  to  the  land  actually 
occupied.  Kobertson  v.  Smith  (Mich.) 
1918D-145.  (Annotated) 

20.  Constructive  notice  of  fraud. — To  af- 
fect a  bona  fide  purchaser  for  value  of  land 
with  constructive  notice  of  fraud  ,by  his 
predecessor,  the  means  of  knowledge  must 
be  such  that  it  was  gi-oss  or  culpable  neg- 
ligence not  to  acquire  the  knowledge;  it 
not  being  sufficient  that  he  could  have  ob- 
tained the  knowledge  by  prudent  caution. 
Tobey  v.  Kilbourne   (U.  S.)   1918C-470. 

21.  Burden  of  proof. — In  a  suit  to  set 
aside  a  conveyance  for  fraud,  the  burden  of 
proving  the  defense  of  bona  fide  purchaser 
is  on  the  defendant.  Tobey  v.  Kilbourne 
(U.  S.)    1918C-470. 

b.  Rights  and  Liabilities  of  Purchaser  from 
Vendee   in   Executory   Contract. 

22.  In  a  suit  to  recover  land  from  the  as- 
signee of  the  original  purchaser  because  of 
fraud  in  procuring  the  contract,  the  evi- 
dence is  held  to  sustain  a  finding  that  the 
assignee  had  no  notice  of  the  fraud  at  the 
time  he  paid  the  consideration  therefor. 
Tobey  v.  Kilbourne   (U.  S.)   1918C-470.         i 

23.  Subsequent  acquirement  of  legal  title. 
— Where  a  contract  for  the  purchas^e  of  land 
was  procured  by  fraud,  but  was  assigned  to 
an  innocent  purchaser,  and  by  agreement  of 
all  the  parties  the  deed  was  made  directly  to 
the  assignee,  he  can  defend  as  a  bona  fide 
purchaser,  the  same  as  if  the  deed  had  been 
made  to  the  original  purchaser  and  the  land 
then  conveyed  to  the  assignee.  Tobey  v. 
Kilbourne  (U.  S.)  1918C-470. 


VENUE. 

Where  offense  of  introducing  liquors  into 
state  committed,  see  Intoxicating  Liq- 
uors, 9. 

1.  Action  for  libel. — A  civil  action  for  libel 
being  a  transitory  action,  and  maintainable 
wherever  jurisdiction  of  the  person  of  the 
guilty  parties  can  be  obtained,  there  was 
nothing  to  prevent  plaintiff  bringing  both 
actions  in  the  same  cii'cuit  court,  though  in 
one  action  he  sought  damages  only  for  the 
circulation  of  the  libel  in  Wisconsin,  and 
in  the  other  action  disclaimed  as  to  such 
damages,  especially  as  the  fraternal  order, 
if  it  authorized  or  ratified  the  acts  of  its 
agent,  was  jointly  responsible  for  his  acts. 
Morse     v.     Modern    Woodmen,  of    America 

•  (Wis.)   1918D-480. 

2.  Change — Where  municipality  is  party. 
—Under  Act  March  18,  1909  (P.  L.  37),  § 
1,  par.  4,  relating  to  change  of  venue  in 
cases  to  which  the  county  or  a  munici- 
pality therein  is  a  party  and  local  preju- 
dice is  shown,  and  paragraph  5,  relating  to 
change  of  venue  where  a  large  number  of 
the  inhabitants  of  the  county  have  an  in- 
terest adverse  to  the  applicant,  a  party  is 
not  entitled  to  a  change  of  venue,  unless  it 
is  shown  to  the  court  that  a  fair  and  im- 
partial trial  cannot  otherwise  be  had. 
Pennsylvania  R.  Co.  v.  Reading  (Pa.)  1918E- 
562.  (Annotated) 

3.  On  application  for  change  of  venue  in  a 
condemnation  proceeding,  where  the  public 
has  gained  the  impression  that  plaintiflF  would 
give  the  land  in  question  to  the  city,  and  it 
was  afterwards  learned  that  there  was  a  con- 
dition and  the  gift  was  not  made,  and  there 
was  much  public  discussion  of  the  matter 
in  the  newspapers  which  were  about  evenly 
divided  between  those  favoring  and  those 
criticising  plaintiff,  and  the  publications 
had  not  appeared  shortly  before  the  trial, 
denial  of  the  application  is  not  error,  though 
in  two  of  six  i-roceedings  by  plaintiff  a  ver- 
dict has  been  rendered  which  was  not  satis- 
factory to  plaintiff"  in  amount.  Pennsyl- 
vania'r.    Co.    V.    Reading    (Pa.)    1918E-562. 

(Annotated) 

4.  The  interest  of  taxpayers  as  such  in 
condemnation  proceedings  against  a  city  is 
not  such  "interest"  adverse  to  the  applicant 
for  change  of  venue  as  to  require  such  change 
under  Act  March  18,  1909  (P.  L.  37),  §  1, 
par.  5.  Pennsylvania  R.  Co.  v.  Reading  (Pa.) 
1918E-562.  (Annotated) 


VERDICTS. 

See  Damages,  5-10. 

Excessiveness  of  verdict  in  action  for  libel 
or  slander,  see  Libex  and  Slander,  68- 
70. 

Judgment  non  obstante  veredicto,  see  Judg- 
ments, 4. 

Review  of  verdict  in  appellate  court,  see  Ap- 
peal AND  Error,  44-48,  51. 


VEKIFICATIOX— WAGES. 


221 


Eight  to  judgment  for  amount  of  I033  indi- 
cated by  special  verdict  but  not  allowed 
in  general  verdict  ii  action  against  li- 
censee, see  License,  o. 

1.  Form.— A  verdict  for  "^e.SOO,  Six  Thous- 
sand  $5.00  Dollars,"  with  affidavits  of  six 
jurors  that  $6,500  was  intended,  is  not  so 
indefinite  and  uncertain  as  to  wairant  grant- 
ing of  new  trial.  Havs  v.  Hogan  (Mo.) 
1918E-1127. 

2.  General  verdict  as  one  on  each  count. — 
A  verdict  of  guilty  as  charged  upon  all  the 
counts  of  an  indictment  is  a  sufiicient  ver- 
dict on  each  count.  People  v.  Brown  (111.) 
1918D-772. 

3.  A  verdict  of  guilty  as  charged  upon  all 
the  counts  does  not  limit  the  court  to  the 
imposition  of  the  penalty  for  a  single  offense. 
People  V.  Brown    (111.)    1918D-772. 

4.  Construction. — A  verdict  is  not  to  be 
construed  as  strictl}'  as  an  indictment,  but 
liberally,  with  all  reasonable  intendments  in 
its  support.  People  v.  Brown  (111.)  1918D- 
772. 

5.  AflSdavits  of'  jurors  to  explain. — Affi- 
davits of  jurors  are  competent  to  explain  a 
clerical  i-iror  in  a  verdict.  Ha,vs  v.  Hogan 
(Mo.)     1918E-1127. 

6.  Finding  degree  of  crime. — The  offense 
of  assault  with  intent  to  kill,  punishable  by 
Pen.  Code,  $  285.  though  containing  the  ele- 
ments of  assault  from  simple  assault  to  as- 
sault with  intent  to  kill,  is  not  divided  into 
degrees  within  Code  Cr.  Proc.  §  408,  declar- 
ing tiiat  when  a  crime  is  divided  into  degrees 
the  jury  must  find  the  degree,  and  a  ver- 
dict finding  accused  guilty  as  charged  under 
Pen.  Code,  §  285,  is  sufficient.  State  v. 
Morse   (S.  D.)    1918C-570. 

7.  Where,  on  a  trial  for  assault  with  in- 
tent to  kill,  the  court  charged  that,  if  the 
jury  did  not  find  accused  guilty  of  the  offense 
•charged,  they  could  find  him  guilty  of  as- 
sault with  a  dangerous  weapon,  or  of  simple 
assault,  or  not  guilty,  and  submitted  four 
forms  of  verdict,  to  which  no  exceptions 
were  taken,  a  verdict  of  guilty  as  charged  io 
not  objectionable  for  un-^ertainty.  State  v. 
Morse  "(S.  D.  )101CC-570. 

8.  Correction  of  verdict. — The  affidavit  of 
all  the  jurors  may  l)e  received  to  show  that 
by  a  clerical  error  of  the  jury  the  verdict 
returned  in  court  was  the  opposite  of  the 
verdict  unanimously  agreed  upon  by  them. 
Stevens  v.  Montgomerv.  27  Minn.  108.  dis- 
tinguished.    Paul  V.  Pye   (Minn.)   1918E-286. 

(Annotated) 

9.  When  a  mistake  is  plainly  shown,  there 
is  little  room  for  discretion  in  the  court  to 
refuse  to  act.  Paul  v.  Pye  (Minn.)  1918E- 
280. 

10.  Direction  of  verdict. — In  a  suit  on  a 
life  policy,  where  there  is  some  testimony 
tending  to  prove  that  the  policy  was  avoid- 
ed by  the  insured's  breach,  the  direction  of 
verdict  for  the  plaintiff  is  erroneous.  Gil- 
christ v.  Mystic  Workers,  etc.  (Mich.)  1918C- 
756. 

11.  Where,  at  the  close  of  the  trial  of  a 
law  action,  each  party  moves  for  a  directed 
verdict,    the    motion   of   one   of    the    parties 


being  sustained,  the  finding  of  the  court 
takes  the  place  of  a  verdict  by  the  jury  and 
will  be  so  treated  on  appeal.  Modern  Wood- 
men of  America  v.  Berry   (Neb.)   1918D-302. 


VERIFICATION. 

Waiver  of  verification  of  answer  by  joining 
issue,  see  Pleadixg,  25. 


VESTED   RIGHTS. 

Effect  of  adoption  of  constitution,  see  Con- 
stitutional Law,  2. 


VIEW  OF  PREMISES. 

Discretion  of  trial  court  to  refuse,  see  Trial, 

7. 


VILIiAGE. 

Meaning  of  "village"  as  used  in  statute  au- 
thorizing formation  of  lighting  districts 
by  unincorporated  towns  and  villages,  see 
lioHTiNG  Districts,  8. 


VIRTUAL    REPRESENTATION. 

See  Parties  to  Actions,  1,  2. 

VISIBILITY. 

Of  easement,  see  Easements,  3. 

VOLUNTEER. 

Injury  by  electric  wires,  see  Electbicity,  4. 

VOTERS  AND  ELECTIONS. 

See  Elections. 

VOTING    CONTEST. 

Eights  of  parties  to  voting  contest,  see 
Fraud,  10-13,  15. 

VOTING   TRUSTS. 

See  Corporations,  40,  41. 

WAGES. 

As  preferred  claim  against  insolvent  corpo- 
ration, see  Corporations,  43,  44. 

Minimum  wage  rate  for  women,  see  Labor 
Laws,  4-5. 


222 


ANK  CAS.  DIGEST  (19180-1918E). 


WAIVER. 

Of  attachment  lien,  see  Attachment,  3. 

Of  error  on  appeal,  see  ArrEAL  and  Ebbob, 
68-64. 

Of  exemption  from  execution,  see  Execu- 
tions, 78. 

Of  forfeiture  of  gift  by  will  by  contest,  see 
Wills,  45,  46, 

Of  forfeiture  of  insurance  policy,  see  Lite 

IXSUBANCE,    3. 

Of  ground  for  annulment  of  marriage,  see 

Mabbiage,  14. 
Of  immunity  as  sovereign  from  suit,  see  In- 

TEBNATIONAL   LaW,    1,   2. 

Of  indictment  and  trial  by  jury,  see  Cblmi- 
NAL  Law,  ]3. 

Of  misnomer  of  city  in  action,  see  Munici- 
pal  CORPOBATIONS,    33,   34. 

Of  notice  of  termination  of  lease,  see  Land- 
lord AND  Tenant,  17. 

Of  objection  to  tender  because  not  made  in 
cash,  see  Payment,  2. 

Of  provision  in  lease  against  subletting,  see 
Landlord  and  Tenant,  11. 

Of  requirement!  for  proof  of  death  of  insured, 
see  Life  Insurance,  10,  11. 

Of  right  of  accused  to  be  present  at  trial, 
see  Criminal  Law,  5-10. 

Of  suspension  of  member  of  beneficial  asso- 
ciation, see  Beneficial  Associations, 
15,  16,  19. 

Of  verification  of  answer  by  joining  issue, 
see  Pleading,  25. 

Pleading  waiver  of  forfeiture  of  insurance 
policy,  see  Insurance,  22. 

WAR. 

See  Aliens  ;  Army  and  Xavy. 

Contingent  fee  for  collection  of  civil  war 
damage  claim,  see  Attorneys,  6-10. 

Frustration  of  voyage  bj-  war  as  constructive 
loss  imder  marine  insurance  contract, 
see  Marine  Insurance,   1. 

Title  and  subject  matter  of  Montana  War  De- 
fense Act,  see  Statutes,  2,  3. 

1.  Appropriation  by  state  for  assisting. — 
Laws  1918  (Ex.  Sess.)  c.  21,  §§  1-14.  ap- 
propriatinff  money  for  aiding  and'  assisting 
the  United  States  in  carrying  on  the  present 
war  and  authorizing  an  expenditure  of  such 
money  for  the  purpose  of  encouraging  those 
engaged  in  agriciiltural  pursuits,  does  not 
authorize  the  state  to  give  or  extend  its 
credit  or  make  gifts  or  donations  to  individ- 
uals, associations,  or  corporations,  in  vio- 
lation of  Const,  art.  13,  §  1,  the  right  to 
assist  the  United  States  in  war  being  ex- 
pressly recognized  as  a  proper  and  probable 
occasion  for  the  use  of  state  funds  by  article 
12,  §  12.  State  v.  Stewart  (Mont.)  1918D- 
1101.  (Annotated) 

2,  Laws  1918  (Ex.  Sess.)  c.  21,  §§  1-14, 
appropriating  money  for  assisting  the  United 
States  in  war  and  authorizing  the  issuance 
of  bonds  in  excess  of  the  constitutional  limit 
of  indebtedness,  is  not  in  violation  of  Const. 
art.  12,  §  12,  forbidding  expenditures  in  ex- 
cess of  such  amount,  except  for  "appropria- 


tions or  expenditures  to  suppress  insurrec- 
tion, defend  the  state,  or  assist  in  defending 
the  United  States  in  time  of  war."  State 
V.  Stewart  (Mont.)   1918D-1101.  (Annotated) 

3.  Laws  1918  (Ex.  Sees.)  c.  21,  §§  1-14, 
does  not  create  a  "debt"  within  Const,  art. 
13,  §  2,  forbidding  the  creation  of  a  debt 
without  providing  by  irrepealable  law  for 
the  levy  of  a  tax  until  the  indebtedness 
therein  provided  shall  have  been  fully  paid 
or  discharged.  Stewart  v.  Stewart  (Mont.) 
1918r)-1101.  (Annotated) 

4.  Said  act  is  not  in  violation  of  Const, 
art.  5,  §  35,  forbidding  appropriations  for 
charitable,  industrial,  educational,  or  benev- 
olent purposes  to  any  person,  corporation, 
or  community  not  under  the  absolute  control 
of  the  state.  State  v.  Stewart  (Mont.) 
1918D-1101.  (Annotated) 

5.  Natixre  of  allowance  for  reimbursement. 
— An  amount  appropriated  under  act  March 
4,  1915,  to  repay  the  city  of  Memphis  for  the 
rental  value  of  land  taken  for  a  navy  yard 
during  the  Civil  War  is  not  a  gift  or  bounty, 
but  is  in  the  nature  of  a 'debt  supported  by 
good  and  valuable  consideration.  Moyers  v. 
Memphis    (Tenn.)    1918C-854. 

6.  Effect  on  contracts. — ^A  provision  in  a 
contract  for  the  sale  of  goods,  the  deliveries 
to  cover  a  period  of  years,  that  in  the  event 
of  war  between  the  nations  of  the  respective 
parties  delivery  under  the  contract  shall  be 
suspended  and  resumed  at  the  end  of  the 
war  is  void  as  against  public  policy  and  on 
the  outbreak  of  war  the  contract  is  nullified. 
Bieber  v.  Eio  Tinto  Co.   (Eng.)   1918D-583. 

(Annotated) 

7.  A  construction  contract  is  terminated 
by  an  order  of  the  ministry  of  munitions 
made  in  time  of  war  suspending  the  work 
indefinitely,  such  an  order  not  being  within 
a  provision  for  an  extension  of  the  time  to 
perform  in  case  of  "difficulties,  impediments 
or  obstructions."  Metropolitan  Water  Board 
v.  Dick  (Eng.)  1918C-390.  (Annotated) 


WARDS. 

6ee  Guardian  and  Ward. 

WAREHOUSEMEN. 

Cold  storage  of  food,  see  Food,  1-4. 
Termination   of  carrier's   liability,  see  Cab- 
Bisaa  OF  Goods,  3. 


WARRANTY. 

See  Sales. 

(By  insured,  see  Fibe  Insubance,  5,  6. 
By  insurer,  see  Insurance,  21;  Life  Insub- 
ance, 4-6. 
Covenants  in  deeds,  see  Deeds,  8-12. 

1.  Germinating  power  of  seed. — The  ev- 
idence sustains  a  finding  of  the  jury  that  in 
the  course  of  negotiations  with  the  plaintiffs 
the  vice-president  and  general  manager  of 
the    defendant     corporation     made     an     oral 


WASTE— WATERWORKS  AND  WATER  COMPANIES.       223 


■waranty  of  the  germinating  power  of  seed- 
wheat  sold  them;  and  the  effect  of  such 
warranty  was  not  as  a  matter  of  law  an- 
nulled by  printed  disclaimers  of  warranty  in 
the  letter  of  confirmation,  invoice  and  ship- 
ping tags,  though  the  contract  was  oral  and 
within  the  statute  of  frauds.  Moorhead  v. 
Minneapolis  Seed  Co.   (Minn.)   1918E-481. 

(Annotated) 

2.  The  vice-president  and  general  manager 
of  the  defendant,  who  had  general  charge  of 
its  office  and  plant,  had  authority  to  bind  it 
by  a  waranty,  though  the  making  of  war- 
ranties on  the  sale  of  seed-giain  was  contra- 
ry to  the  custom  of  tlie  trade.  Moorhead  v. 
Minneapolis  Seed  Co.    (Minn.)    1918E-481. 

(Annotated) 

3.  Whether  the  evidence  sustains  a  finding 
that  there  was  a  breach  of  warranty  in  re- 
spect of  the  germinating  power  of  the  seed 
is  questioned  but  not  decided.  Moorhead  v, 
Minneapolis  Seed  Co.    (Minn.)   191SE-481. 

(Annotated) 

4.  Measure  of  damages. — ^Where  there  is 
an  entire  failure  of  germination,  and  there- 
fore no  crop,  the  measure  of  damages  for  the 
breach  of  warranty  of  germination  is  the 
amount  paid  for  the  seed,  plus  the  cost  of 
planting,  plus  the  value  of  the  use  of  the 
land  for  the  cropping  season,  less  the  value 
of  its  use  for  a  proper  purpose  to  which  it 
might  reasonably  have  been  put  upon  the 
ascertainment  of  a  failui'e  of  germination, 
and  not  the  value  of  the  crop  which  would 
have  been  raised  if  the  seed  had  been  true 
to  warranty  less  the  cost  of  planting  and 
producing.  Moorhead  v.  Minneapolis  Seed 
Co.  (Minn.)   1918E-481.  (Annotated) 


WASTE. 

1.  Placing  of  excavated  material  on  lot.— 
Under  the  lease  of  a  lot  fifty  by  one  hundred 
and  thirty-seven  feet,  not  generally  valuable 
tor  agricultural  purposes,  adjacent  to  the 
tenant's  lot,  used  by  it  for  a  grape  juice  fac- 
tory and  cold  storage  plant,  not  specifying 
the  purposes  for  which  it  might  be  used,  but 
providing  that  the  lessee  should  not,  under 
penalty  of  forfeiture,  make  or  suffer  any 
waste  thereof,  or  any  alteration  therein 
without  the  lessor's  consent  in  writing,  the 
lessee's  placing  upon  the  lot  of  surface  soil., 
sand,  gravel,  or  rock,  excavated  from  the  ad- 
jacent lot  so  that  the  sand  might  be  used  in 
the  concrete  mixture  for  the  cellar  or  base- 
ment wall,  and  that  the  gravel  or  rock  might 
be  readily  moved  and  the  surface  soil  dis- 
posed of,  all  of  which  had  been  removed, 
with  the  exception  of  twelve  yards  on  a  cor- 
ner of  the  lot  left  to  make  a  better  drive- 
way, does  not  constitute  waste  for  which 
the  lessor  might  forfeit  the  lease;  "waste" 
being  an  unreasonable  and  improper  use, 
abuse,  mismanagement,  or  omission  of  duty 
touching  realty  by  one  rightfully  in  posses- 
sion, which  results  in  substantial  injury 
thereto.  Moore  v.  Twin  City  Ice,  etc.  Stor- 
age Co.   (Wash  >   1918D-540.  (Annotated) 


WATERS  AXD  W^ATERCOURSES. 

See  Watebwoeks  and  Wateb  Compan^ies. 

1.  Diversion  of  percolating  waters. — The 
right  of  a  landowner  to  dig  wells  on  his  own 
land  and  take  therefrom  percolating  water 
is  qualified  by  the  nile  of  reasonable  user, 
that  he  may  not  divert  it  to  use  elsewhere 
to  the  injury  of  other  landowners  in  theu- 
right  of  reasonable  use  of  percolating  waters 
in  their  lands.  Schenk  v.  Ann  Arbor  (Mich.) 
1918E-267.  (Annotated) 

2.  The  right  of  a  landowner  to  use  per- 
colating waters  is  none  the  less  qualified  by 
the  rule  of  reasonable  user,  because  it  is  a 
city  and  is  seeking  water  for  its  inhab- 
itants. Schenk  v.  Ann  Arbor  (Mich.) 
1918E-267.  (Annotated) 

3.  Where  a  city  may  divert  percolating 
waters  from  its  land  for  its  inhabitants 
without  violating  the  rule  of  reasonable 
user,  and  in  so  doing  is  not  harming  plain- 
tiff, it  will  not  be  enjoined;  but  plaintiff 
will  be  allowed  damages  for  prior  injury, 
with  right  to  apply  to  the  court  in  case  of 
future  injuiy.  Schenk  v.  Ann  Arbor 
(Mich.)    19i8E-267.  (Annotated) 

4.  Accretions. — Whether  accretions  have 
been  formed  from  the  main  bank  of  a 
stream  to  an  island  in  the  channel  or  from 
the  island  to  the  bank  is  a  question  of  ma- 
terial fact  to  be  determined  from  the  ev- 
idence, construed,  of  course,  by  reference  to 
well-established  principles  governing  the 
law  of  accretions.  It  is  none  the  less  a 
question  of  fact.  Stark  v.  Meriwether 
(Kan.)   1918E-993. 

5.  Apportionment  of  accretions.  —  The 
proper  method  or  rule  for  apportioning  ac- 
cretions on  rivers  or  other  bodies  of  water 
between  adjoining  proprietors  depends  upon 
varying  circumstances  and  conditions  so 
that  it  is  impracticable  to  state  a  general 
rule  that  will  apply  in  all  cases.  Stark  v. 
Meriwether   (Kan.)   1918E-993.     (Annotated) 

6.  On  the  facts  stated  in  the  opinion,  held, 
that  the  adoption  of  a  rule  of  apportion- 
ment between  two  adjoining  proprietors  by 
which  each  acquires  a  frontage  on  the  new 
shore  proportional  to  his  frontage  on  the  old 
one,  by  an  extension  of  the  original  side  lines, 
will  not  be  disturbed.  Stark  v.  Meriwether 
(Kan.)   1918E-993.  (Annotated) 


W^ATERWORKS  AND   WATER   COM- 
PANIES. 

See  Wateks  and  Watercourses. 

1.  Duty  as  to  water  supply. — ^Where^  a 
corporation  assumes  practically  exclusive 
right  to  provide  a  community  with  water 
for  domestic  use,  it  must  exercise  ordinary 
care  and  vigilance  in  furnishing  and  distrib- 
uting at  all  times  an  adequate  supply  of 
wholesome  water.  Hamilton  v.  Madison 
Water  Co.  (Me.)   1918I>-853. 

2.* While  a  private  water  company  fur- 
nishing water  to  a  town  is  not  a  guarantor 


224: 


ANN.  CAS.  DIGEST  (1918C-1918E). 


of  the  purity  of  its  water  or  of  its  freedom 
from  infection,  it  is  bound  to  use  reasonable 
•care  in  ascertaining-  whether  there  is  a  rea- 
sonable probability  that  its  water  supply 
may  be  infected  with  a  communicable  dis- 
ease from  causes  which  are  known  to  exist, 
or  which  could  have  been  known  or  foreseen 
by  the  exercise  of  such  care;  and  if  the  ex- 
ercise of  such  care  M-ould  have  disclosed  a 
reasonable  probability  of  such  infection, 
then  it  becomes  the  duty  of  a  water  com- 
pany to  adopt  whatever  approved  precau- 
tionary measures  are,  under  the  circum- 
stances of  the  case,  reasonably  proper  and 
necessary  to  protect  the  community  which 
it  serves  from  the  risk  of  infection.  Hamil- 
ton V.  Madison  Water  Co.  (Me.)   1918D-853. 

(Annotated) 

3.  It  is  no  part  of  the  duty  of  the  con- 
sumer to  investigate  the  water  supply  and 
ascertain  the  source  of  pollution;  such  duty 
resting  on  the  company  furnishing  water. 
Hamilton  v.  Madison  Water  Co.  (Me.) 
1918D-853.  (Annotated) 

4.  Action  for  injury  from  impure  water. — 
In  an  action  by  a  consumer  for  injuries  from 
typhoid  germs  in  water  supplied  by  a  pri- 
vate water  company,  the  plaintiff  to  recover 
must  prove:  (1)  That  the  fever  was  con- 
tracted from  the  use  of  Avater  furnished  by 
defendant;  (2)  that  the  defendant  was  neg- 
ligent in  supplying  contaminated  water;  (3) 
that  the  plaintiff  exercised  due  care.  Hamil- 
ton V.  Madison  Water  Co.   (Me.)   1918D-853. 

(Annotated) 

5.  In  a  consumer's  action  against  a  water 
supply  company  for  injuries  from  typhoid 
germs  in  water,  it  is  only  where  it  appears 
that  the  injuries  were  occasioned  by  one  of 
two  causes  that  the  plaii  tiff  must  give  proof, 
excluding  equal  probability  that  injury  re- 
sulted from  a  cause  other  than  that  for 
which  the  defendant  is  responsible.  Hamil- 
ton V.  Madison  Water  Co.   (Me.)   1918D-8.53. 

(Annotated) 

6.  In  a  consumer's  action  against  a  water 
company,  supplying  water  for  domestic  pur- 
poses, for  damages  for  illness,  it  is  not  nec- 
essary to  prove  actual  knowledge  of  the  un- 
wholesomeness  of  the  water  by  defendant 
company  to  establish  negligence;  it  being 
sufficient  to  furnish  testimony  tending  to 
show  that  exercise  of  reasonable  care  might 
have  disclosed  condition  of  water.  Hamil- 
ton v.  Madison  Water  Co.   (:Me.)    1918D-853. 

(Annotated) 

7.  Evidence. — In  an  action  against  a  pri- 
vate Water  company  for  injuries  from  ty- 
phoid germs  in  water  supplied  a  consumer, 
the  consumer's  burden  of  proof  as  to  source 
of  disease  is  satisfied  by  showing  facts  and 
circumstances  from  which  it  reasonably  ap- 
pears that  drinking  of  such  water  was  prob- 
able efficient  cause  of  fever.  Hamilton  v. 
Madison  Water  Co.  (Me.)  1918D-853. 

(Annotated) 

8.  In  an  action  against  a  water  company 
for  damages,  evidence  of  company's  failure 
to  exercise  reasonable  care  in  apprehending 
danger   and   taking   precautionary   measures 

.to  avert  it  is  held  to  be  sufficient  to  Atab- 


lish  negligence.     Hamilton  v.  Madison  Water 
Co.   (Me.)   1918D-853.  (Annotated) 

9.  In  a  consumer's  action  against  a  water 
supply  company  for  injuries  alleged  to  be 
due  to  typhoid  germs  in  water  furnished, 
the  evidence  is  held  to  be  sufficient  to  justi- 
fy the  conclusion  that  the  source  of  the  con- 
sumer's illness  was  the  water  furnished  by 
the  defendant  company.  Hamilton  v.  Mad- 
ison Water  Co.  (Me.)  I918D-853. 

(Annotated) 

10.  In  a  consumer's  action  against  a  wa- 
ter company,  supplying  water  for  domestic 
use,  for  injuries  from  typhoid  germs,  ev- 
idence held  insufficient  to  establish  contrib- 
utory negligence,  the  consumer  having  done 
what  ordinarily  a  prudent  water  taker 
Avould  have  done  under  the  same  circum- 
stances. Hamilton  v.  Madison  Water  Co. 
(Me.)   1918D-853.  (Annotated) 

11.  Question  of  fact. — In  an  action  by  a 
consumer  for  injuries  due  to  typhoid  germs 
alleged  to  have  been  in  the  water  furnished 
by  the  defendant  water  company,  the  source 
of  plaintiflPs  disease  is  a  question  of  fact. 
Hamilton  v.  Madison  Water  Co.  (Me.) 
1919D-853.  (Annotated) 


^VAYBIIXS. 

Copies  of  waybills  as  evidence  in  prosecution 
for  sale  of  liquor,  see  Ixtoxicatixg  Liq- 
UOBS,  13. 


WEAPONS. 

1.  Accidental  shooting  by  sportsman. — An 

instruction,  in  an  action  by  one  shot  while 
out  hunting,  that  a  loaded  shotgun  was  a 
dangerous  weapon  which  would  produce  bod- 
ily injury  when  discharged,  and  that  the  law 
charged  each  member  of  a  hunting  party  with 
such  knowledge,  and  that  it  is  the  duty  of 
each  to  use  that  degree  of  care  su'h  as  any 
reasonably  prudent  man  would  use  under  the 
circumstances,  correctly  states  the  degree 
of  care  which  persons  are  bound  to  use,  the 
law  requiring  persons  having  possession  of 
firearms  to  exercise  the  utmost  care  that 
harm  may  not  come  to  others,  the  degree  of 
care  being  commensurate  with  the  danger- 
ous character  of  the  weapon.  Gibson  v. 
Payne    (Ore.)    1918C-383.  (Annotated) 

2.  In  an  action  by  plaintiff  who  was  shot 
while  out  hunting,  the  court  charged  that 
plaintiff  was  bound  to  establish  by  the  great- 
er weight  of  evidence  that  defendant  careless- 
ly and  negligently  shot  him;  that  members 
of  a  hunting  party  must  use  the  care  and 
caution  such  as  any  reasonably  prudent  man 
would  exercise  under  the  circumstances; 
that  the  law  charges  them  with  knowledge 
that  a  loaded  shotgun  is  dangerous  and  that 
it  was  for  the  jury  to  determine  whether 
plaintiff,  by  going  in  front  of  the  party,  was 
careless  or  negligent.  It  is  held  that  the 
instructions  did  not  place  upon  plaintiff  the 
burden  of  proving  a  want  of  contributory 
negligence;  the  instructions  specifically  stat- 


WEIGHT  AND  SUFFICIENOY  OF  EVIDEIN^CE— WILLS.      225 


ing,  after  referring  to  defoudant's  claims, 
that  he  was  bound  to  establish  them  by  the 
greater  weight  of  evidence.  Gibson  v.  Pavne 
(Ore.)    1918C-383.  (Annotated) 

3.  Admissibility  of  evidence. — ^Where  the 
complaint  of  one  who  claimed  he  was  negli- 
gently shot  avers  that  defendant  carelessly 
cocked  a  shotgun  in  his  hands,  defendant  is 
entitled  to  rebut  such  claim  by  testimony 
that  when  he  received  the  gun  it  was  al- 
ready cocked.  Gibson  v.  Payne  (Ore.) 
1918C-383. 

4.  Questions  for  jury. — In  an  action  by 
one  shot  while  out  hunting,  the  question 
whether  he  was  contributorily  negligent  in 
preceding  the  hunting  party  into  a  field  is 
held,  under  the  evidence,  to  be  for  the  jury. 
Gibson  v.  Payne   (Ore.)   1918C-383. 

5.  In  an  action  for  damages  for  injuries 
received  when  he  was  struck  by  shot  from  a 
gun  discharged  by  defendant,  while  hunting, 
the  question  of  defendant's  negligence  is 
held  to  be  for  the  jury.  Gibson  v.  Pavne 
(Ore.)    1918C-383.  *         (Annotated) 


•WEIGHT  AND  SUFFICIENCY  OF  EVI- 
DENCE. 


See  Evidence. 


VTEIGHTS  AND  MEASURES. 

1.  Validity  of  statute  prescribing  stand- 
ard.— The  authority  to  prescribe  a  stand- 
ard of  weights  and  measures  not  being 
vested  by  the  Constitution  of  the  United 
States  exclusively  in  Congress,  it  is  within 
the  power  of  the  legislatures  of  the  several 
states  to  enact  laws  fixing  and  regulating 
standard  of  weights  and  measures  in  all  re- 
spects in  which  Congress  has  not  legislated 
upon  the  subject.  Section  6415.  General 
Code,  as  amended  March  12,  1913  (103  0.  L. 
139),  prescribing  the  dimensions  of  the  peck 
and  lesser  measures,  is.  therefore,  Aalid. 
Williams  v.  Sandles  (Ohio)  1918D-154. 

(Annotated) 

2.  Validity  of  provision  for  confiscation  of 
false  devices. — Tlie  provisions  of  section 
7965 — 1,  General  Code,  authorizing  the  con- 
demnation and  confiscation  of  false  or  fraud- 
ulent weighin<i'  or  measuring  devices,  are 
within  the  police  power  of  the  state,  and  do 
not  contravene  either  the  state  or  federal 
constitution.  Williams  v.  Sandles  (Ohio) 
1918D-154.  (Annotated) 


WIDTH. 

Of  crossing  at  railroad,  see  Railroads,  6. 

VTILLS. 

1.  Formal  Requisites  to  Validity: 

a.  Signature  of  Testator,  225. 

b.  Attestation.  226. 

2.  Testamentary  Capacity,   226. 

Ann.  Cas.  Dig.  1918C-E.— 15. 


3.  Undue  Influence,  226. 

4.  Revocation,   226. 

5.  Probate: 

a.  Witnesses,  227. 

b.  Evidence.   227. 
c  Appeal,   227. 

d.  Costs,  227. 

e.  Contracts    Relating   to   Probate,    227. 

6.  Construction: 

a.  General  Rules  of  Construction: 

(1)  Intention   of   Testator.   227. 

(2)  Meaning  of  Words,    227. 

(3)  Evidence    in    Aid    of    Construc- 

tion,   227. 

b.  Construction  of  Particular  Provisions, 

228. 

7.  Validity  of  Provisions: 

a.  Creation    of    Spendthrift   Trust,    228. 

b.  Creating    Piesumption     of     Survivor- 

ship,  228. 

c.  De\ise    to    Person    under    Fictitious 

Name,  228. 

d.  Forfeiture   of   Gift  by    Contest,   228. 

8.  Legatees  and  Devisees: 

a.  In  General,    229. 

b.  Lapsing  and  Ademption,  229. 

c.  Election,  229. 

■     d.  Payment,    229. 

e.  Interest,   229. 

See  Advancement;  Descent  and  Distbibu- 

TION;    EXECUTOBS   AND   ADMINISTBATOBS  ; 

Life  Estates;  Remaindebs  and  Rever- 
sions:  Trusts  and  Trustees. 

Attorney  drawing  will  who  is  also  partner  of 
attorney  for  proponents  of  will  as  com- 
petent witness  in  proceedings  to  probate, 
see  Witnesses,  1. 

Bequests  to  charity,  see  Chabities,  3,  4. 

Election  of  annuitant  to  take  capital  sum, 
see  Annuities,  1. 

Establishment  of  lost  will,  see  Lost  Instru- 
ments, 6. 

Expert  evidence  as  to  capacity  of  testator  in 
stage  of  senile  dementia,  see  Evidence, 
13. 

Number  of  challenges  to  jurors  in  will  con- 
test, see  JimY,  3. 

Opinion  evidence  as  to  capacity  of  testator, 
see  Evidence,  15. 

Payment  of  annuity  from  income  or  corpus  of 
estate,  see  Annuities,  2. 

Proof  of  foreign  wills,  see  Evidence,  17-19. 

1.  Formal  Requisites  to  Validity. 

a.  Signature  of  Testator. 

1.  Necessity  of  signing  in  presence  of  wit- 
nesses.— A  testator  is  not  required  to  sign 
his  will  in  the  presence  of  the  witnesses,  and 
due  execution  is  had  if  he  has  acknowledged 
the  instniment  as  his  fee  and  voluntary  act 
and  deed,  though  he-  signed  it  beforehand  and 
out  of  the  presence  of  the  witnesses.  Flynn 
V.  Flynn   (111.)   1918E-1034. 

2.  Signature  by  another. — A  will  may  be 
executed  by  the  testator  signing  his  name, 
or  acknowledging  the  instrument  as  his  will, 
though  signing  through  someone  else.  Flynn 
V.  Flynn    (111.)    1918E-1034.  (Annotated) 


226 


ANN.  CAS.  DIGEST  (1918G-1918E). 


b.  Attestation. 

3.  An  attestation  clause  reading,  "The 
above  and  foregoing  instrument,  consisting 
of  the  foregoing  page,  was  on  the  day  and 
date  thereof  signed  by  T.  F.,  the  above 
named  testator,  in  our  presence,  and  declared 
by  him^  tp  be  his  last  will  and  testament, 
and  the  execution  thereof  to  be  his  free  act 
and  deed,  and  we  thereupon,  at  his  request 
and  in  his  presence,  and  in  the  presence  of 
each  other,  signed  our  names  hereto  as  wit- 
nesses to  the  said  will;  and  we  hereby  de- 
clare that  we  believe  the  said  T.  F.,  at  the 
time  of  signing,  executing,  acknowledging 
and  witnessing  the  said  will,  to  be  of  sound 
mind  and  memory,  and  that  the  same  was 
his  free  and  vohmtary  act  and  deed,"  is  held 
to  cover  all  the  requirements  of  the  statute, 
and  to  be  prima  facie  evidence  of  due  execu- 
tion of  the  will.  Flynn  v.  Flynn  (111.) 
1918E-1034. 

4.  Effect  of  failure  to  remember  transac- 
tion.— An  attestation  clause,  which  the  at- 
testing witnesses  to  the  will  swear  bears 
their  signatures,  is  competent  evidence  to  es- 
tablish due  execution  of  the  will  in  chan- 
cery, when  the  only  defect  in  the  proof  is 
that  the  subscribing  witnesses  are  unable  to 
recollect  that  all  the  formalities  prescribed 
by  statute  and  recited  in  the  attesting 
clause  werQ  actually  complied  with.  Flynn 
V.  i*lyna  (in.)  1918E-1034.        "  (Annotated) 

2.  Testamentary  Capacity. 

5.  Delusions  as  to  relatives. — Where  a 
will  is  attacked  on  the  ground  that  testator 
was  the  victim  of  insane  delusions  that  his 
brothers  had  come  to  his  house  to  poison  and 
kill  him,  and  there  is  evidence  from  which 
the  testator  might  have  drawn  such  infer- 
ences, he  cannot  be  deemed  a  victim  of  in- 
sane delusions,  for  his  contentions  were  pos- 
sible, though  improbable,  and  an  instruction 
that  evidence  of  such  delusions  can  be  con- 
sidered merfely  on  the  soundnesss  of  his  mind 
is  proper.  In  re  Haslick's  Estate  (Mich.) 
1918D-466.  (Annotated) 

6.  Evidence  as  to  capacity. — In  a  will  con- 
test case,  evidence  of  testator's  habits,  bus- 
iness ability  and  conduct  at  other  times  and 
places  than  the  time  of  making  the  will,  is 
admissible  only  to  throw  light  on  the  ques- 
tion Avhether  he  was  of  unsound  mind  at  the 
time  he  executed  the  will.  In  re  Haslick's 
Estate  (Mich.)  1918D-466. 

7.  Letters  used  in  testator's  divorce  case 
twenty-five  years  prior  to  his  death  are  in- 
admissible as  too  remote  to  show  his  lack 
of  sound  mind.  Walsh's  Estate  (Mich.) 
1918E-217. 

8.  In  a  will  contest  case,  evidence  held  to 
warrant  finding  that  at  the  time  of  the  ex- 
ecution of  the  will,  testator  was  of  sound 
and  disposing  mind.  In  re  Haslick's  Estate 
(Mich.)  1918D-466. 

3.  Undue  Influence. 

9.  Evidence  insufficient  to  go  to  jury. — 
The  question  of  undue  influence  should  not 
be  submitted,  where  there  is  no  evidence  of 


undue  influence  other  than  proof  that  testa- 
tor did  not  dispose  of  his  property,  as  he  in 
casual  conversation  declared  he  wo\ikl.  In 
re   Haslick's   Estate    (Mich.)    1!)18D-4G(5. 

10.  Instructions. — In  a  will  contest  in 
which  undue  influence  was  asserted,  the  pro- 
ponents requested  an  instruction  that  if  the 
jury  found  that  the  testator,  being  of  sound 
mind,  at  various  times  after  the  exeeiition 
of  the  will  had  it  read  over  to  him,  and  ex- 
pressed no  dissatisfaction  therewith,  and 
that  at  such  times  he  was  not  under  the  co- 
ercion of  any  of  the  proponents,  nor  unduly 
influenced  in  any  way,  then  these  facts  were 
cogent  evidence  tending  to  show  that  the 
instrument  was  in  fact  his  true  will.  It  is 
held  that  this  instruction  or  its  equivalent 
should  have  been  given,  where  evidence  as 
to  the  testator's  satisfaction  with  the  will  at 
a  time  when  he  was  entirely  free  from  the 
alleged  undue  influence  was  admitted,  but 
the  jury  were  not  told  that  the  purpose  of 
its  admission  wag  to  show  that  the  will  was 
not  dictated  by  previous  undue  influence. 
In  re  Connors'  "Will    (Iowa)    1918C-378. 

4.  Revocation. 

11.  Destruction  of  copy  of  will  executed  in 
duplicate. — Where  a  will  is  executed  in  dupli- 
cate, destruction  of  one  copy  by  the  testator 
raises  the  rebuttable  presumption  of  intent 
to  revoke.  Walsh's  Estate  (Mich.)  1918E- 
217.  (Annotated) 

12.  In  a  will  contest,  an  instruction  that, 
if  a  duplicate  copy  was  destroyed  before  tes- 
tator handed  another  copy  to  an  executrix, 
there  can  be  no  conclusive  presumption  that 
he  destroyed  the  duplicate  with  intent  to  re- 
voke, is  not  erroneous.  Walsh's  Estate 
(Mich.)  1918E-217. 

13.  Presumption  from  failure  to  find  will. 
— The  presumption  that  a  will  which  can- 
not be  found  by  proper  search  was  destroyed 
by  the  testator  animo  revocandi  is  rebuttable 
by  evidence  of  the  testator's  acts.  In  re 
Keene   (Mich.)   1918E-367. 

14.  Declarations  of  testatrix. — Evidence 
that  testatrix  drew  a  will  cutting  ofl"  her 
husband  with  only  $10  '"because  he  liad 
robbed  her,"  that  she  frequently  declared 
that  she  had  her  affiairs  fixed  so  that  her 
property  Mould  go  to  her  brothers  children, 
in  whose  favor  the  will  was  drawn,  and  that 
she  so  said  on  the  day  of  her  death,  and  that 
divorce  proceedings  against  her  husband  were 
then  pending,  is  sufficient  to  raise  the  ques- 
tion of  fact  as  to  whether  she  revoked  the 
will  which  was  lost.  In  re  Keene  (Mich.) 
1918E-367.  (Annotated) 

15.  Evidence  of  enmity  between  testatrix 
and  person  disinherited. — Where  testatrix  be- 
queathed to  her  husband  $10  and  no  more 
because  he  robbed  testatrix  until  she  '"fired 
him  out  of  the  house,"  and  the  husband  con- 
tested the  will,  the  original  of  which  had 
been  lost,  evidence  of  enmity  between  testa- 
trix and  contestant  was  admissible  on  the 
question  of  revocation  of  the  lost  will.  In 
re  Keene  (Mich.)  1918E-.367. 

16.  Sufficiency  of  evidence. — The  evidence 
held  to  make  a  question  for  the  jury  whether 


WILLS. 


227 


testator  by  destruction  of  one  of  duplicate 
wills  intended  a  revocation.  Walsh's  Es- 
tate   (Mich.)    1918E-217.  (Annotated.) 

5.  Probate. 

a.  Witnesses. 

17.  Requiring  production  of  subscribing 
witnesses. — Where  it  is  shown  that  a  witness 
to  the  execution  of  a  will  resides  out  of  the 
state  and  she  testified  in  the  probate  court, 
and  no  real  issue  is  made  as  to  the  execution 
of  the  will,  there  is  no  error  in  failing  to 
require  that  such  witness  be  produced. 
Walsh's  Estate  (Mich.)  1918E-217. 

b.  Evidence. 

18.  Testimony  of  subscribing  witness. — In 
proceedings  to  probate  a  will,  testimony  of 
an  attesting  witness  that  he  understood  all 
the  necessary  formalities,  and  would  not 
have  signed  as  attesting  witness  if  the  neces- 
sary questions  had  not  been  asked,  and  the 
will  not  been  executed  in  the  proper  way,  is 
competent.  Flynn  v.  Flvnn  (111.)  1918E- 
1034.  '  (Annotated) 

19.  Testimony  other  than  by  attesting  wit- 
nesses.— Under  the  statute  of  wills,  as 
amended  in  1909,  other  evidence  than  that  of 
two  attesting  witnesses  may  be  offered  in 
support  of  a  will  in  the  circuit  court.  Flynn 
V.  Flynn    (111.)    1918E-1034. 

20.  Conduct  of  proponent. — Testimony  as 
to  conduct  and  statements  of  a  proponent  is 
properly  restricted  to  the  purpose  of  testing 
his  credibility,  and  cannot  be  used  as  sub- 
stantive testimony.  Walsh's  Estate  (Mich.) 
1918E-217. 

21.  Strfiadency. — ^Where  a  will,  signed  by 
mark,  has  an  attestation  clause  shoAving 
proper  execution,  and  the  attesting  witnesses 
testify  to  all  the  facts  of  execution  them- 
selves, such  will  is  properly  admitted  to  pro- 
bate, though  the  witnesses  cannot  testify 
that  testator  personally  made  the  mark,  par- 
ticularly where  the  attesting  witnesses  also 
signed  their  names  to  the  left  of  testator's 
name  and  above  the  attestation  clause,  seem- 
ingly to  witness  the  signature  of  the  will 
by  mark,  and  not  as  part  of  the  attestation 
clause,  which  they  also  signed.  Flvnn  v, 
Flynn   (111.)    1918E-1034.  (Annotated) 

c.  Appeal. 

22.  Scope  of  issues. — On  appeal  to  the  su- 
perior court  from  an  order  and  decree  of  the 
probate  court  admitting  a  will  to  probate, 
the  special  statutory  issue  as  to  whether  the 
will  is  a  valid  will  is  the  sole  issue.  South 
Xorwalk  Trust  Co.  v.  St.  John  (Conn.) 
1918E-1090. 

d.  Costs. 

23.  Allowance  to  executor. — The  law  does 
not  cast  upon  the  person  nominated  executor 
in  a  will  the  legal  duty  of  procuring  its  pro- 
bate: and  such  person,  thoiigh  acting  in  good 
faith,  is  not  entitled  to  payment  out  of  the 
fund  for  his  services  and  expenses  in  an 
ultimately  unsuccessful  effort  to  probate  the 


will  against  a  contest  by  the  heir  upon  the 
ground  of  want  of  testamentary  capacity, 
though  he  is  successful  in  the  first  instance 
in  securing  its  allowance  in  the  probate  court. 
Kelly  y.  Kennedy   (Minn.)   1918D-164. 

(Annotated) 

e.     Contracts   Relating  to   Probate. 

24.  Agreement  to  dispense  with  probate — 
Validity. — Any  right  of  all  the  parties  in 
interest  set  aside  or  disregard  a  Avill  does 
not  extend  to  an  active  trust  created  by  a 
testator,  which  he  deems  proper  to  protect 
his  beneficiaries,  except  where  the  will  creat- 
ing the  trust  fixes  a  definite  duration  and 
names  the  successive  trustees.  Stewart's 
Estate    (Pa.)    1918E-1216.  (Annotated) 

25.  Where  a  will  left  the  residuary  estate 
in  trust  for  testator's  wife  for  life,  and  on 
her  death  to  pay  the  income  to  his  children- 
in  equal  shares,  and  to  the  issue  of  any  de- 
ceased child  per  stirpes,  and  directed  that 
on  the  death  of  the  last  surviving  child  the- 
principal  should  vest  under  the  intestate 
laws,  the  widow  and  children,  though  they 
are  the  only  persons  in  being  interested  iii 
the  estate,  cannot  prevent  the  execution  of 
the  trust  by  agreeing  to  cancel  the  will, 
and  are  not  entitled  to  enjoin  its  probate. 
Stewart's  Estate  (Pa.)  1918E-1216. 

(Annotated) 

6.  Construction, 
a.  General  Rules  of  Construction. 

(1)  Intention  of  Testator. 

26.  Courts  look  closely  to  discover  and 
give  effect  to  the  intention  of  the  testator. 
Poole  V.  Union  Trust  Co.  (Mich.)  1918E- 
622. 

27.  In  construing  a  will,  the  expressed  in- 
tention of  the  testator  must  guide  and  gov- 
ern the  court,  a  rule  which  applies  to  every 
part,  the  clause  appointing  an  executor  not 
excepted.  State  v.  Holtcamp  (Mo.)  1918D- 
454, 

■  2,  Meaning  of  Words, 

28.  When  the  ordinary  words  of  the  Eng- 
lish language  are  used  in  a  will,  they  must 
be  held  to  bear  the  customary  meaning  at- 
tached to  them,  unless  a  different  sense  can 
be  obtained  from  the  context,  and  it  is  not 
permissible  to  go  outside  of  the  will  and 
show  that  the  testator  was  accustomed  to 
attach  a  meaning  to  these  words  peculiar  to 
himself.  Moseley  v.  Goodman  (Tenn.) 
1918C~931.  (Annotated) 

3.  Evidence  in  Aid  of  Construction.        i 

29.  Identification  of  devisee. — Persons  en- 
titled to  a  bequest  given  under  nicknames, 
by  which  the  testator  habitually  designated 
them,  by  extrinsic  evidence  may  establish 
this  fact,  and  upon  so  doing  are  entitled  to 
the  legacy.  Moseley  v.  Goodman  (Tenn.) 
1918C-931. 

30.  Where  testator  knew  a  Mrs.  T.,  but 
always    called   her    Mrs.   M.,   the    mere    fact 


228 


ANK  CAS.  DIGEST   (1018O-1918E). 


that  he  devised  property  to  Mra.  M.,  plu3 
evidence  that  a  Mrs.  M.  existed  whose  legal 
name  was  such,  did  not  satisfy  the  language 
of  the  will  so  as  to  preclude  admission  of 
testimony  that  testator  always  called  an- 
other person  Mrs.  M.,  to  raise  a  latent  am- 
biguity. Moseley  v.  Goodman  (Tenn.) 
1918C-931.  (Annotated) 

51.  A  designation  of  a  beneficiary  as  Mrs. 
M.  itself  requires  the  production  of  parol 
evidence  to  identify  the  legatee,  and  evidence 
that  the  testator  was  accustomed  to  call  a 
certain  person  Mrs.  M.  is  sufficient  to  raise 
the  issue  whether  such  person  was  intended 
or  another.  Moseley  v.  Goodman  (Tenn.) 
1918C-931.  (Annotated) 

32.  Where  testator  devises  property  to 
Mrs.  M.  and  to  Mrs.  M.'s  housekeeper,  the 
mere  fact  that  one  whose  legal  name  is  Mrs. 
M.  had  a  housekeeper  does  not  foreclose 
inquiry  whether  the  testator  meant  another 
person,  whom  he  always  called  Mrs.  M.,  to 
whom  and  to  whose  housekeeper  he  was 
indebted  for  many  kindnesses.  Moseley  v. 
Goodman   (Tenn.)   1918C-931.       (Annotated) 

33.  Although  there  was  no  evidence  that 
a  claimant  was  generally  known  as  Mrs. 
M.,  it  is  sufficient  to  show  the  testator's 
meaning  if  there  is  evidence  that  he  always 
called  a  certain  person  INIrs.  M.  Moseley  v. 
Goodman    (Tenn.)    19180-931. 

34.  The  evidence  is  held  to  be  sufficient  to 
show  that  by  a  legacy  to  Mrs.  M.  testator 
intended  a  Mrs.  T.,  whom  he  always  called 
bv  the  former  name.  Moseley  v.  Goodman 
(tenn.)     19180-931.  '    (Annotated) 

b.  Construction  of  Particular  Provisions. 

35.  Estate  created. — A  gift  by  testator  of 
the  use  of  all  his  property,  real  and  person- 
al, to  his  wife  for  her  life,  creates  a  life 
estate  in  all  property,  real  and  personal. 
Cross  V.  Buskirk-Rutledge  Lumber  Co. 
(Tenn.)   1918D-983. 

36.  Trust  estate. — ^A  will  bequeathing  the 
residuary  estate  in  trust  for  the  benefit  of 
testator's  wife  for  life,  and  on  her  death  to 
pay  the  income  to  his  children  in  equal 
shares,  and  to  the  issue  of  any.  deceased 
child  per  stirpes,  and  directing  that  on  the 
death  of  the  last  surviving  child  the  prin- 
cipal should  vest  under  the  intestate  laws, 
creates  a  valid,  well-defined,  active  trust. 
Stewart's  Estate  (Pa.)  1918E-1216. 

37.  Gift  to  class. — Statute  of  Descent 
(Kurd's  Rev.  St.  1915-16,  c.  39),  §  11,  pro- 
viding that  whenever  a  devisee,  being  a 
child  or  grandchild  of  testator,  shall  die  be- 
fore testator,  and  no  provision  shall  be  made 
for  such  contingency,  the  issue  of  such  devi- 
see shall  take  the  devise,  applies  to  a  devisee 
dying,  to  testator's  knowledge,  before  the 
making  of  the  will;  so  that  a  daughter  of 
testator  having  died  before  the  will  was 
made,  leaving  as  issue  a  daughter,  and  testa- 
tor having  made  devises  to  his  living  daugh- 
ters and  such  granddaughter  by  name,  and 
devised  the  remainder  in  other  lands  to  "my 
children,"  the  granddaughter  takes  her 
mother's  share  in  the  devised  remainder. 
Kehl  v.  Taylor  (TU.)  1918D-948.  (Annotated) 


7.  Validity  of  Provisions. 

a.  Creation    of    Spendthrift    Trust. 

38.  Where  the  right  of  a  testator  to  create 
a  spendthrift  trust  has  crystallized  into  a 
rule  of  property,  it  should*  not  be  changed 
by  the  courts,  but  by  the  legislature.  Boston 
Safe  Deposit,  etc.  v.  Collier  (Mass.)  19180- 
962.  (Annotated) 

b.  Creating   Presumption   of    Survivorship. 

39.  Where  a  testator  directs  that  trust 
funds  be  paid  as  his  wife's  will  may  direct, 
and  that  he  shall  be  deemed  to  have  pre- 
deceased her  if  order  of  death  is  unknown, 
and  the  wife  makes  a  will  at  the  same  time 
as  her  husband,  reciting  the  power  and  giv- 
ing the  property  affected  thereby,  the  pos- 
sibility that  the  wife  might  have  prede- 
ceased her  husband  does  not  render  the  gift 
void,  and  the  property  passes  according  to 
the  wife's  will.  Matter  of  Fowles  (N.  Y.) 
1918D-834.  (Annotated) 

40.  Giving  effect  to  the  estator's  intent 
does  not  violate  the  rule  against  enlarging 
wills  by  reference  to  extrinsic  documents 
which  may  not  be  authentic.  Matter  of 
Fowles  (N.  Y.)   1918D-834.  (Annotated) 

c  Devise  to   Person  under  Fictitious  Name. 

41.  A  devise  to  a  person  by  any  name, 
however  different  the  name  used  in  the  will 
from  the  true  name  of  the  person,  is  good, 
provided  it  is  shown  that  the  name  used  is 
one  by  which  the  testator  was  accustoqied 
to  designate  the  person.  Moseley  v.  Good- 
man (Tenn.)   19180-931. 

d.  Forfeiture  of  Gift  by  Contest. 

42.  What     contest     entails     forfeiture. — 

Where  children  of  a  testator  -appeal  from 
an  order  admitting  the  will  to  probate,  there- 
by raising  the  special  statutory  issue  as  to 
whether  the  will  is  valid,  they  violate  a 
provision  of  the  will  that  any  beneficiary  of 
the  will  contesting  its  probate  or  operation, 
or  seeking  to  set  it  aside  or  annul  it,  shall 
forfeit  the  interest  given  such  beneficiary 
by  the  will,  though  they  attempt  to  conceal 
their  purpose  to  contest  the  will  by  stipu- 
lating that  the  only  questions  to  be  deter- 
mined are  whether  a  provision  in  the  will 
is  void  vmder  the  law  against  perpetuities 
and  whether  a  gift  of  income  without  limi- 
tation passes  an  absolute  estate.  South 
Norwalk  Trust  Oo.  v.  St.  John  (Conn.) 
1918E-1090.  (Annotated) 

43.  An  action  by  a  legatee  to  determine 
the  true  construction  of  a  will  or  of  any  of 
its  parts  is  not  a  breach  of  the  ordinary  pro- 
vision for  forfeiture  in  case  of  a  contest,  as 
the  object  of  such  an  action  is  not  to  make 
void  tiie  will  or  any  of  its  parts,  but  to  as- 
certain its  true  legal  meaning.  South  Nor- 
walk Trust  Co.  V.  St.  John  (Oonn.)  1918E- 
1090.  (Annotated) 

44.  Under  a  provision  in  a  will  for  a  for- 
feiture of  the  rights  of  any  beneficiary  con- 
testing the  will,  a  beneficiary  does  not  for- 
feit   his    rights    by    bringing    a    contest    for 


WITNESSES. 


229 


which  there  is  a  reasonable  ground,  as  the 
law  is  vitally  interested  in  having  prop- 
erty transmitted  by  will  under  the  condi- 
tions it  prescribes,  and  none  others,  and  if 
those  interested  are  forced  to  remain  silent 
the  court  will  be  unable  to  ascei'tain  the 
truth,  and  those  who  would  profit  by  a  will 
procured  by  undue  influence  or  made  by  one 
lacking  testamentary  capacity  would  there- 
by be  aided  in  their  wrongful  designs.  South 
Xorwalk  Trust  Co.  v.  St.  John  (Conn.) 
1918E-1090.  (Annotated) 

45.  Waiver  of  forfeiture. — Under  a  will 
providing  for  forfeiture  in  case  of  a  con- 
test, where  all  the  children  and  beneficiaries 
united  -in  a  contest,  they  cannot  waive  the 
forfeiture  on  the  ground  that  they  are  the 
only  persons  who  can  claim  a  forfeiture,  as 
the  condition  of  forfeiture  is  not  for  the 
benefit  of  the  other  beneficiaries,  but  to 
carry  out  the  wishes  of  the  testator.  South 
Norwalk  Trust  Co.  v.  St.  John  (Conn.) 
1918E-1090. 

46.  In  such  case,  all  of  the  children  having 
forfeited  all  of  their  rights  under  the  will, 
the  property  of  the  testator  is  intestate  es- 
tate. South  Xorwalk  Trust  Co.  v,  St.  John 
(Conn.)    1918E-1090. 

8.  Legatees    and    Devisees. 

a.  In  General. 

47.  Establishment   of  rights   of  legatee. — 

One  bringing  suit  to  establish  her  right  under 
a  will  has  the  burden  of  proving  that  she  is 
the  legatee  intended.  Moseley  v.  Goodman 
(Tenn.)   10T8C-931. 

b.  Lapsing  and  Ademption. 

48.  Where  testator  gives  to  his  wife  cer- 
tain property  absolutely,  and  in  a  subse- 
quent clause  provides  that  he  shall  be  deemed 
to  have  predeceased  her  if  order  of  death  is 
unknown,  the  gift  does  not  lapse,  but  passes 
to  the  personal  representatives  of  the  wife. 
Matter  of  Fowles   (N.  Y.)   1918D-834. 

(Annotated) 

c.  Election. 

49.  Effect  on  right  of  other  devisees. — 
Where  it  appears  from  a  will  that  the  pos- 
sesjiion  of  the  remainderman  was  postponed 
solely  for  the  benefit  of  the  testator's  widow, 
who  was  given  a  life  estate,  it  is  presumed 
that,  on  her  renunciation  of  the  life  estate, 
the  remaindermen  are  entitled  to  enter  into 
enjoyment  at  once.  Scotten  v.  Moore  (Del.) 
1918C-409.  (Annotated) 

50.  A  contention  that  the  election  by  a 
widow,  who  was  given  a  life  estate  under  a 
will  to  take  her  dower  interest,  desti'oys  the 
contingent  remainders  created  by  the  will, 
since  they  could  not  vest  until  the  death  of 
tlie  widow,  and  there  could  be  no  remainder 
without  a  particular  estate  to  support  it, 
so  that  testator  died  intestate  as  to  the  life 
estate,  will  not  be  sustained,  where  contrary 
to  the  testator's  intention,  and  probably  un- 
sound.    Scotten  V.  Moore   (Del.)    1918C-409. 

(Annotated) 


51.  Where  a  testator  gave  his  property  to 
his  wife  for  life,  and  after  her  death  to  his 
children  then  living,  or  in  case  of  their  death 
to  their  representatives,  share  and  share 
alike,  the  evident  intent  of  the  testator  was 
to  provide  first  of  all  for  his  wife,  and  to  give 
the  property  to  the  children  as  soon  as  his 
wife's  interest  terminated,  and  they  are 
therefore  entitled  to  the  immediate  posses- 
sion as  soon  as  the  widow  elected  not  to  take 
under  the  will,  whether  their  remainders  are 
vested  or  contingent.  Scotten  v.  Moore 
(Del.)    1918C-409.  (Annotated) 

d.  Payment. 

52.  Time. — W^here  testator  devises  prop- 
erty in  trust,  directing  his  trustees  to  make 
payments  of  the  income,  the  trustees,  though 
much  must  be  left  to  their  discretion,  should 
Jiot  make  partial  distribution  of  the  final 
residue  of  the  estate  until  accumulations  of 
income  will  leave  a  fair  margin  of  safety  to 
protect  the  beneficiaries.  Parkhurst  v.  Ginn 
(Mass.)  1918E-982. 

53.  Where  testator,  who  has  devised  and 
bequeathed  the  bulk  of  his  property  in  trust, 
after  providing  for  various  annuities  and  an 
anntial  payment  to  a  charity,  directs  that 
when,  after  the  payment  of  such  gifts  and 
legacies,  a  resei-ve  of  sufficient  funds  shall 
become  available  for  distribution,  certain  be- 
quests shall  be  paid,  one  of  them  being  to  an 
individual,  such  bequests  should  not  be  with- 
held, where  the  trust  fund  has  reached  such 
a  sum  that  it  is  amply  sufficient  to  satisfy 
all  prior  charges,  and  a  portion  of  which 
consists  of  real  estate,  which  would  doubt- 
less be  sold  within  a  reasonable  time  and 
added  to  the  productive  property;  it  being 
apparent  that  testator  did  not  intend  such 
bequests  to  be  permanently  delayed.  Park- 
hurst V.  Ginn   (Mass.)    1918E-982. 

e.  Interest. 

54.  Interest  is  payable  on  pecuniary  lega- 
cies from  the  time  when,  by  the  terms  of  the 
will  or  by  rules  of  law,  they  become  due  and 
ought  to  be  paid.  Parkhurst  v.  Ginn  (Mass.) 
1918E-982. 

55.  Rate  of  interest — ^After  the  happen- 
ing of  a  contingency  on  which  a  legacy  was 
payable,  such  legacy,  under  St.  1915,  c.  151, 
§  2,  bears  interest  at  the  rate  of  4  per  cent, 
unless  the  court  rules  otherwise.  Parkhurst 
V.  Ginn   (Mass.)   1918E-982. 


WITNESSES. 

1.  Competency: 

a.  Interest,     230. 

b.  Member  of  Grand  Jury,   230. 

c.  Privileged  Commtmications,   230. 

d.  Transaction    with    Person    Since    De- 

ceased,   230. 

2.  Examination: 

a.  Mode  of  Examination,  230. 

b.  Cross-examination,  230. 

c.  Redirect  Examination,    231. 


230 


AlfN.  CAS.  DIGEST  (19180-1918E). 


3.  Credibility,  Impe&chinent   and   Corrobora- 
tion: 

a.  Credibility,  231. 

b.  Impeachment,  231. 

c.  Corroboration,  231. 

See  Appeal  and  Ebbob;   Evidence j   Triai-. 
Attesting  witnesses  of  will,  see  Wills,  1,  3, 
4,  17-19,  21. 

1.  Competency. 

a.  Interest. 

1.  Draftsman  of  will — Partner  of  attorney 
for  party. — In  proceedings  to  probate  a  will, 
the  testimony  of  an  attesting  witness,  a 
lawyer,  is  not  incompetent  because  he  drew 
the  will,  while  his  partner  tried  the  case  in 
the  lower  court,  and  is  attorney  for  propon- 
ents in  the  supreme  court,  since  the  interest 
which  will  disqualify  a  witness  must  be  cer- 
tain, direct,  and  immediate,  showing  that  he 
will  gain  or  lose  as  the  direct  result  of  the 
suit,  and,  if  the  testimony  does  not  show 
such  direct  interest,  the  witness'  interest,  if 
any,  goes  merely  to  his  credibility,  and  not 
to  ills  comj>etency.  Flvnn  v.  Flynn  (111.) 
1918E-1034. 

b.  Member  of  Grand  Jury. 

2.  Scope  of  requirement  of  secrecy, — Comp. 
Laws  1897,  §  11887,  providing  that  a  mem- 
ber of  a  grand  jury  cannot  be  obliged  or  al- 
lowed to  testify  in  what  manner  he  or  any 
member  voted  on  any  question  before  them, 
or  what  opinions  were  expressed  by  'any 
juror  in  relation  to  any  such  question,  ap- 
plies only  to  a  proceeding  in  which  an  in- 
dictment* was  properly  found,  and  not  to 
deliberations  concerning  and  resulting  in  an 
unauthorized  libelous  report  by  the  grand 
jurv.  Bennett  v.  Stockwell  (Mich.)  1918E- 
1193. 

c.  Privileged    Communications. 

3.  Husband  and  wife — Effect  of  divorce.— 
A  divorced  husband  cannot  testify  against 
his  wife  as  to  a  confidential  communication 
between  him  and  his  wife.  Hesdorffer  v. 
Hiller    (Miss.)    1918E-191.  (Annotated) 

4.  Code  1906,  §  1916,  providing  that  hus- 
band and  wife  may  be  introduced  by  each 
other  as  witnesses  in  all  cases  and  shall  be 
competent  witnesses  in  their  own  behalf  as 
against  each  other  in  all  controversies  be- 
tween them,  leaves  the  common-law  rule  as 
to  the  competency  of  husband  and  wife  ap- 
plicable to  the  question  of  a  divorced  hus- 
band's competency  to  testify  against  his 
wife  in  a  suit  in  which  there  is  no  contro- 
versy between  the  husband  and  wife.  Hes- 
dorffer v.  Hiller   (Miss.)   1918E-191. 

(Annotated) 

5.  Wliere  a  husband  pledged  stock  certif- 
icates belonging  to  his  wife  and  purporting 
to  have  been  indorsed  by  her,  and  was  sub- 
sequently divorced  from  her.  he  was  a  com- 
petent witness  against  her  as  to  the  in- 
dorsement of  the  certificates,  since,  if  she 
indorsed  them  to  enable  him  to  borrow  nionev 


upon  them,  she  could  not  have  deemed  the 
transaction  confidential,  and  a  husband  or 
wife  may  testify  against  the  other  after 
divorce  if  the  testimony  does  not  relate  to 
privileged  communioations.  Hesdorffer  v. 
Hiller    (Miss.)    1918E-191.  (Annotated) 

6.  Physician  and  patient — Waiver  by  pro- 
vision in  insurance  policy. — Comp.  Laws 
1897,  §  10181,  which  prohibits  disclosure  by 
a  phj-sician  of  information  imparted  to  him 
in  his  professional  capacity  by  a  patient,  was 
amended  by  Pub.  Acts  1909,  No.  234,  provid- 
ing that  after  the  decease  of  such  patient, 
in  a  contest  upon  the  question  of  admitting 
his  will  to  probate,  his  heirs  at  law  shall  be 
deemed  to  be  his  personal  representatives 
to  waive  the  privilege.  An  insurance  policy 
issued  by  a  fraternal  benefit  organization 
provided  that  the  insured  waived  her  privi- 
lege relating  to  the  disclosure  by  attending 
physicians  of  information  obtained  while 
acting  as  such.  It  is  held  that  the  waiver 
was  inoperative  to  render  a  physician's  tes- 
timony admis.-^ible  in  suit  on  the  policy, 
since  the  Act  of  1909  creates  the  only  excep- 
tion to  the  prohibition  against  physicians' 
testimony.  Gilchrist  v.  Mvstic  Workers,  etc. 
(Mich.)    1918C-756. 

d.  Transaction  with  Person  Since  Deceased. 

7.  Waiver  of  objection. — By  cross-examin- 
ing an  interested  party  relative  to  conversa- 
tions with  a  deceased  person,  the  cross-e.\- 
amining  partA'  waives  the  right  given  by 
Gen.  St.  1913,  §  8378,  Rev.  Laws  1905,  § 
4663,  to  exclude  such  testimony;  and  the 
party  examined  may  give  further  testimony 
as  to  such  conversations  at  any  appropriate 
time  in  the  trial  though  not  questioned  rela- 
tive thereto  on  redirect.  Stair  v.  McXulty 
(Minn.)   1918D-201.  (Annotated) 

2.  Examination. 

a.  Mode  of  Examination. 

8.  Leading  questions. — In  a  criminal  trial, 
allowing  leading  questions  to  witnesses 
speaking  through  an  interpreter  is  largely 
in  the  trial  court's  discretion.  People  v. 
Brown    (111.)    1918D-772. 

9.  Refreshing  memory. — While  a  witness 
can  testify  only  to  such  facts  as  are  within 
his  knowledge '  and  recollection,  he  is  per- 
mitted to  refresh  and  assist  his  memory  by 
the  use  of  a  written  instrument,  memoran- 
dum, or  entry  in  a  book,  and  it  is  not  neces- 
sary that  the  writing  should  have  been  made 
by  the  witness  himself,  or  that  it  should 
have  been  an  original  writing,  nor  that  the 
writing  thus  used  should  itself  be  admissible 
in  evidence,  provided  that  after  inspecting 
the  record  he  can  speak  to  the  facts  from 
hia  own  recollection.  Scovill  Mfg.  Co.  v. 
Oassidy  (111.)  1918B-602. 

b.  Cross-examination. 

10.  As  to  accuracy  of  appraisal. — In  an 
action  for  deceit  in  the  sale  of  a  decedent's 
goods  by  defendant,  as  administrator, 
through   an   agent,   where  defendant   offered 


WOMEX— ^YORDS  AXD  PHRASES. 


231 


evidence  of  what  appeared  to  be  the  estimate 
of  appraisers  of  the  value  of  the  stock,  it 
is  proper  for  the  buyers  to  show  by  cross- 
examination  that  the  appraisers  placed  a 
different  value  upon  the  goods.  Harlow  v. 
Perry    (Me.)    1918C-37. 

11.  Cross-examination  of  accused. — ^In  a 
prosecution  for  manslaughter  in  the  opera- 
tion of  motor  vehicles,  where  defendant  de- 
nied all  Jnowledge  of  having  struck  deceased, 
and  testified  that  he  knew  nothing  about  it 
at  the  time,  his  cross-examination  as  to 
w  hether,  when  notified,  he  went  up  to  find 
out  what  he  was  accused  of,  is  proper.  State 
V.  Schaeffer   (Ohio)    1918E-1137. 

c.  Redirect  Examination. 

18.  Cross-examination  outside  scope  of  di- 
rect.— Where  defendant,  on  cross-examination 
of  a  witness  whose  direct  examination  is 
confined  to  the  identification  of  testimony 
considered  by  arbitrators,  draws  out  testi- 
mony as  to  the  award  and  what  the  arbitra- 
tors intended  to  decide,  the  cross-examina- 
tion justifies  redirect  examination  of  the 
witness  on  the  same  subject  and  forecloses 
any  objection  which  might  otherwise  have 
been  urged  to  the  competency  of  the  evi- 
dence. Oregon-Washington  R.  etc.  Co.  v. 
Spokane,  etc.  R.  Co.   (Ore.)   1918C-991. 

3.  Credibility,  Impeachment  and   Corrobora- 
tion. 

a.  Credibility. 

13.  The  credibility  of  witnesses  is  a  ques- 
tion for  the  jury.  McCue  v.  State  (Tex.) 
19180-674. 

b.  Impeachment. 

14.  Proof  of  character. — To  impeach  de- 
fendant as  a  witness  his  character  for  hon- 
esty may  not  be  shown,  but  only  his  char- 
acter for  truthfulness  and  morality.  Ray 
V.  Shemwell  (Ky.)   1918C-1122. 

c.  Corroboration. 

15.  Proof  that  testimony  not  volunteered. 
— Where  the  accused  attacks  a  witness  by 
evidence  of  statements  that  he  was  going  to 
volunteer  to  testify,  though  he  knew  noth- 
ing of  the  case,  the  witness  may  be  corrobo- 
rated by  evidence  that  his  name  was  fur- 
nished to  the  prosecution  bj'^  another.  McCue 
V.  State  (Tex.)   1918C-674. 

16.  Proof  of  good  reputation. — Where  a 
witness  is  a  stranger,  and  discrediting  facts 
have  been  developed  in  his  cross-examina- 
tion, he  may  be  corroborated  by  proof  that 
his  general  reputation  for  truth  and  veracity 
is  good.     McCue  v.  State   (Tex.)  '1918C-674. 

17.  Where  witnesses  offered  by  the  ac- 
cused to  prove  his  alibi  are  contradicted  by 
the  state's  witnesses  as  to  the  fact  of  the 
alibi,  but  are  not  in  any  other  way  attacked, 
their  testimony  may  not  be  corroborated  by 
proof  of  their  general  reputation  for  vera- 
city, notwithstanding  the  trial  is  held  in  a 
county  where  accused's  witnesses  are  not 
known.     McCue   v.   State    (Tex.)    1918C-674. 


18.  Previous  consistent  statements. — Where 
accused  attacks  the  credibility  of  a  witness 
offered  to  contradict  his  defense  of  alibi  by 
.testimony  that  the  witness  had  stated  to 
others  that  he  knew  nothing  about  the  case, 
but  was  going  to  testify  nevertheless,  etc., 
the  witness  may  be  corroborated  by  evidence 
-that,  shortly  after  the  killing,  he  madie  state- 
ments identical  with  those  given  at  trial. 
McCue  v.  State  (Tex.)    1918C-674. 


WOMEN. 

See  DiVQBCE;  Husband  and  Wife;  Mar- 
riage. 

Construction  and  validity  of  statute  limiting 
hours  of  labor  for  women,  see  Labor 
Laws,  6-11. 

Judicial  notice  of  labor  conditions  of  women, 
see  Evidence,  5. 

Validity  of  statute  establishing  minimum 
wage  rate  for  women,  see  Labor  Laws, 
4,  5. 


WOOD. 

Power .  of  city   to  maintain  wood  yard,  see 
Municipal  Cojsporations,  12. 


W^ORDS  AND  PHRASES. 

"Annulment,"  see  Marriage,  9. 

"Apparatus,"  see  Fixtures,  5. 

"Arising  out  of,"  see  Master  and  SiatVANT, 

13.  16. 
"As  now  established,"  see  Statutes,  14. 
"Average   weekly   wages,"    see   Master   and 

Servant,  19,  24,  25. 
"Children,"  see  Descent  and  Distribution, 

1. 
"Claims,"  see  States,  6. 
"Contiguous,"    see    Adverse   Possession,    2. 
"Continuously,"  see  Insurance,  51. 
"Court,"  see  Jt^DGES,  I. 
"Disability,"  see  Accident  Insurance,  1,  2, 

4. 
"Divorce,"  see  Marriage,  9. 
"Due,"  see  Contracts.  32. 
"Foundries,"  see  Labor  Laws,  3. 
"General  election,"  see  Elections,  4. 
"Idera-sonans,"  see  Taxation,  35. 
'Independent   contractor,"    see   Indeipendent 

Contractors,  1. 
"Industrial  accident,"  see  Master  and  Serv- 
ant,  12. 
"In  the   course  of,"  see  Master  and  Sebv- 

ant,  13,  14,  16. 
"Judge,"  see  Judges,   1. 
"Lawful     requirements,"    see    Master    and 

Servant,  7-9. 
"Loss,"  see  Master  and  Servant,  10. 
"Lost  time,"  see  Master  and  Servant,  20. 
"Machinery,"  see  Fixtures,  6. 
"Manufacturing    establishment,''    see    Labor 

Laws,  10. 
"Mercantile  establishment,"  see  Labor  Laws, 

11. 


232 


ANN.  CAS.  DIGEST  (1918C-li)18E). 


"Mistake  of  law,"  see  Rescission,  Cancella- 
tion AND   ReFOKMATION,   3. 

"Necessary,"   see  Easements,   4;   Life  Es- 
tates, 14. 
"Necessary  expense,"  see  Taxation,  4. 
"Nuisance,"  see  Stbeet  Railways,  6. 
"Offer,"  see  Sales,  3. 
"Practice  of  medicine,"  see  Physicians  and 

SUBGEONS,   5. 

"Proxy,"  see  Cobpobations,  39. 

"Public     improvements,"     see     Mechanics' 

Liens,  4. 
"Public  oflicers,"  see  PtrBLic  Officebs,  1. 
"Public  utility,"  see  Taxation,  29. 
"Resident  o^v^ler,"  see  Taxation,  48. 
"Right  of  way,"  see  Taxation,  9. 
"Roadway,"  see  Taxation,  8. 
"Shall,"  see  Pensions,  4. 
"Special  election,"  see  Elections,  4. 
"Storing,"  see  Fibe  Insubance,  14. 
"Substantially,"  see  Libel  and  Slanoeb,  60. 
"Tracks,"  see  Stbeet  Railways,  2. 
"Turnout    and    appurtenances,"    see    Stbeet 

Railways,  1-3. 
"Undue  influence,"  see  Undue  Influence,  1, 

2. 
"Voting  trust  agreement,"  see  Cobpobations, 

40. 
"Within  the  house,"   see  Insueance,  51. 

1.  About. — The  introduction  of  the  words 
"about"  or  "estimated"  or  "more  or  less"  in  a 
conveyance  or  contract  for  a  conveyance  does 
not  afford  a  shield  against  liability  for  false 
representations  as  to  acreage,  and  the  mere 
fact  that  a  deficiency  is  very  large  in  pro- 
portion to  the  supposed  quantity  is  often 
treated  as  in  itself  evidence  of  fraud  or 
mutual  mistake.  Jeffreys  v.  Weekly  (Ore.) 
1918D-690.  (Annotated) 

2.  Children. — Ordinarily,  the  word  "chil- 
dren" means  the  immediate  offspring,  and 
does  not  include  "grandchildren."  Lowery 
V.   Le   Flore    (Okla.)    1918E-1001. 

(Annotated) 
8.  Consortium. — The  term  "consortium"  in- 
cludes affection,  solace,  comfort,  companion- 
ship, and  society  incidental  to  the  marital 
relation,  and  services  of  the  wife.  Smith  v. 
Nicholas  Building  (Ohio)   1918D-206. 

4.  Continuing  offense. — A  continuing  of- 
fense is  a  transaction  or  a  series  of  acts  set 
on  foot  by  a  single  impulse  and  operated  by 
an  unintermittent  force,  no  matter  how 
long  a  time  it  may  occupy.  Reynolds  v. 
State  (Ariz.)   1918D-879. 

5.  Invoice  value. — ^Plaintiff  represented 
that  a  stock  of  goods  which  he  offered  in 
exchange  for  other  property  was  of  the  in- 
voice value  of  $12,000.  It  is  held  that  the 
expression  "invoice  value"  should  be  con- 
strued as  having  reference  to  the  cost  price 


for  which  the  seller  inNoked  the  goods  to 
the  purchaser,  and  not  to  Iheir  actual  value. 
Knopfler  v.  Flynn    (Minn.)    1918E-538. 

(Annotated) 

6.  Leg. — In  its  common-law  definition,  the 
term  "leg"  does  not  include  the  foot,  nor 
any  of  the  bones  of  the  foot.  Butler  v. 
Eminent  Household  of  Columbian  Woodmen 
(Miss.)   1918D-1137. 

7.  Liquor  saloon. — ^A  liquor  saloon  is  a 
shop  or  room  wherein  is  kept  a  varied  as- 
sortment of  liquors  which  are  sold  by  the 
glass,  drink  or  at  retail.  Gibbs  v.  Arras 
Bros.    (N.  Y.)    1918D-1141. 

8.  Political  party. — A  "political  party"  is 
an  association  of  voters  believing  in  certain 
principles    of    government,    formed    to    urge 

'the  adoption  and  execution  of  such  prin- 
ciples in  governmental  affairs  through  of- 
ficers of  like  beliefs.  Kelso  v.  Cook  (Ind.) 
1918E-68. 

9.  Pro  rata. — In  a  contract  for  the  contri- 
bution to  a  fund  by  several  parties  pro  rata, 
the  term  "pro  rata"  means  in  proportion, 
proportionately,  according  to  measure,  in- 
terest, or  liability  of  each,  and  never  means 
equality  or  an  equal  division,  and  has  no 
meaning  unless  referable  to  some  rule  or 
standard.  Chaplin  v.  Griffin  (Pa.)  1918C- 
787.  (Annotated) 

10.  Stakeholder. — A  "stakeholder"  is  one 
in  whose  hands  money  or  property  is  de- 
posited to  abide  the  event  of  a  gambling  con- 
tract.   Martin  v.  Francis  (Ky.)  1918E-289. 


WORKING  CONTRACTS. 

See  Contbacts,  24-36. 

Construction  of  contracts  with  United  States, 
see  United  States,  1-6. 


WORKMEN'S  COMPENSATION  ACTS. 

See  Masteb  and  Sebvant,  6-26. 

WRIT    OF   INQUIRY. 

Necessity  for  in  justice's  court,  see  Justices 
OF  the  Peace,  4. 


X-RATS. 

Expert  opinion  of  operation  of  X-ray  ma- 
chine, see  Evidence,  14. 
Liability  for  negligent  use,  see  Physicians 

AND   SUBGEONS,   13-15. 

X-ray  photograph  as  evidence,  see  Evidencge, 
26,  27. 


INDEX   TO   THE   NOTES 


IN 


ANN*       CAS/^^*"*''    lAHOITiaOA 


VOLUMES  1918C-1918E 


ABANDONMENT. 

Abandonment  of  purpose  aa  gi'ound  for  dia- 
solution  of  corporation  at  instance  of 
minority   stockholder,   1918E-427. 

Necessity  tiiat  abandonment  or  rescission  of 
written  contract  for  sale  of  goods  be  in 
writing,  1918C-1213. 


ACCOUNTINQ. 

See  Pabtsesship.    >WailiCOLA 

ACCRETIONS. 

See  Waters  and  WatebcoubseS. 


ABOUT. 

Meaning  of  "about"   when  used  with  refer- 
ence to  quantity,  1918D-693. 


ABSENCE. 

See  Death.^  ■■•  A 

ABSTRACT  OF  TITLE. 

Liability  of  abstractor  of  title  on  account  of 
abstract  made  by  him,  1918E-93. 

ABUTTING   O^VNERS. 

See  Streets  axd  Highways. 

ACCIDENT. 

See  MtmiciPAL  Corpobatioxs  ;  Weapons. 

ACCIDENT  INSURANCE. 

Construction  of  "total  disability"  clause  in 
accident  insurance  policy,  1918C-113. 

Meaning  of  term  "confined  to  house"  or  sim- 
ilar phrase  in  accident  or  liealth  insur- 
ance policy,   1918C-531. 


ACCUSED    PERSONS. 

See  C'BiMiNAL  Law. 

ACKNOWUBDGMENTS. 

Necessity  for  acknowledgment  of  lease, 
1918D-161. 

Resort  to  instrument  in  aid  of  certificate 
of  acknowledgment  attached  thereto, 
1918C-347. 

Rights  of  parties  under  deed  or  contract  by 
married  woman  invalid  for  defective  ac- 
knowledgment. 1918E-648. 

Rights  of  parties  under  deed  or  contract  by 
married  woman  invalid  for  want  of  ac- 
knowledgment.   1918E-631. 


ACTIONABLE    \(rORDS. 

See  Libel  and  Slander. 
.8: 

ACTIONS. 

Actions    for    violation    of    federal    hours    of 

service  act,  1918C-815. 
Right  of  alien  enemv  to  defend  action,  1918C- 

721. 
Right  of  alien  enemv  to  sue  or  continue  suit, 

1918C-716. 


233 


234 


ANN.  CAS  DIGEST  (1918C-1918E). 


Right  to  Bue  alien  enemy,  1918C-722. 

See  also  Husband  and  Wjj^b;  Inte2lnation- 
AL  Law;  Lis  Pendens;  Money  Had 
AND  Keceived;  Pashes  to  Actions; 
Pabtnebship. 


AGE. 

Recital    in    public    record   as    proof   of   age, 

1918E-266. 
Waiver  of  forfeiture  of  benefit  certificate  for 

miBrepreeentation  as  to  age,  1918D-305. 


ACT  OF  OOD. 


3HT    OT 


"•  AGENCY. 


Act  of  God  as  exciise  for  failure  to  comply 
with  federal  hours  of  serrice  act,  1918C> 
809. 


ADDITIONAL  COMPENSATION. 

See  CoNXBACTS;  Public  Offioebs. 

ADJOINING  LANDOWNERS. 

Rights  of  parties  with  respect  to  division 
wall  in  case  of  conveyance  of  part  of. 
premises,  1918C-879. 

ADMISSIONS    AND    DECLARATIONS. 

Compromise:  admissibility  of  statement  of 
fact  made  in  connection  with  offer  of 
compromise,  1918E-439. 

Implied  admissions:  failure  of  party  to  civil 
action  to  reply  to  oral  statement  as  im- 
plied   admission,    1918C-9. 

Listructions :  propriety  of  cautionary  instruc- 
tion relative  to  consideration  of  verbal 
admission,  1918D-298. 

Insurance:     declarations    or    written    state-' 
ments    made    by    insured    previous    to 
death  as  evidence  of  suicide,  1918C-1050. 

Pleading:  admissibility  and  conclusiveness 
against  pleader,  in  subsequent  action 
with  stranger,  of  admission  in  pleading, 
1918E-549. 

Wills:  admissibility  of  declarations  of  tes- 
tator upon  issue  of  revocation  of  will 
which  cannot  be  found,  1918E-370. 

See  also  Dying  Decxaeations. 

ADVANCEMENTS. 

When  interest  is  chargeable  on  advancement 
in  distribution  of  testate  estate,  1918E- 

212. 

ADVERTISEMENTS. 

See  iNStJBAiroE 

AFFIDAVITS. 

Affidavits  of  jurors  as  evidence  that  verdict 
returned  or  entered  differed  from  verdict 
actually  found,  1918E-287. 


Gaming:  recovery  from  principal  or  agent  of 
money  lost  in  gaming,  1918E-139. 

Independent  contractors:  person  employed 
as  sales  agent  as  independent  contractor, 
1918C-658. 

Insurance  agents:  liability  of  agent  to  insur- 
ance company  for  failure  to  cancel  or 
reduce  policy  as  directed,  1918C-1043. 

Misfeasance:  personal  liability  of  agent  hav- 
ing charge  of  real  property  for  misfeas- 
ance,  1918I>-233 

Traveling  salesmen:  carrying  side  line  as 
breach  of  contract  by  traveling  sales- 
man,  1918C-952. 

Undue  influence:  existence  of  relationship  of 
principal  and  agent  as  affecting  right  to 
set  aside  trust  for  undue  influence, 
1918C-846. 

See  also  Bbokebs. 


AGRICULTURE. 

Changing  character  of  land  as  waste,  1918D- 

543. 
Person  employed  to  assist  in  baling  hay  as 

independent  contractor,  1918C-656. 


ALIENS. 

Rights    and    liabilities    of    alien    enemies, 
1918C-709. 


ALLOWANCES. 

See  Public  OFFiciats. 

ALMSHOUSES. 

Liability  of  municipality  for  negligence  In 
respect  to  condition  of  or  performance 
of  services  incident  to  almshouse,  1918D- 
803. 

AMOUNT    IN    CONTROVERSY. 

See  Appeal  axd  Erbob. 

AMUSEMENTS. 

See  Buildings  ;  Theaters  and  Amusemknts. 

AND  DUE. 

Legal  meaning  of  "and  due,"  1918E-785. 


COirLATIVE  INDEX  TO  XOTES. 


235 


ANlfDITIES. 

Eight  of  annuitant  to  capital  sum,  1918E- 
808. 


ANNULMENT. 
See  CoNTBACTSj  ^Iabbiagb. 

ANTI-TIPPING  ACT. 

See  Tips. 

APPAREL. 

See  Weaeing  Apparbt.. 

APPEAL  AND  ERROR. 

Amount  in  controversy  for  purposes  of  ap- 
peal where  several  causes  of  action  are 
joined,  1918E-506. 

Entry  of  summarj-  judgment  against  surety 
on  bond  in  nature  of  appeal  bond,  19180- 
1151. 

Review  of  facts  on  appeal  from  decision  of 
intermediate  appellate  court  reversing 
on  facts,  1918D-1205. 

Timeliness  of  objection  to  verification  of 
pleading  made  in  appellate  court,  1918D- 
448. 

APPOINTMENT. 

See  PowEBS. 

APPORTIONMENT  OF  ACCRETIONS. 

See  Watebs  and  Watebcoubses. 


ARMY  AND  NAVY. 

Compulsory  military  service,  1918D-100. 
Power  of  United  States  to  condemn  land  for 
military  purposes,  1918E-48. 


ARSON. 

Construction  of  statute  prescribing  form  of 
indictment  for  arson,  1918C-557. 


ASSEMBLAGE   OF  HOUSES. 

See  Houses. 

ASSIGNMENTS. 

Assignment  of  proceeds  of  contract  by  build- 
ing contractor,  subcontractor  or  mate- 
rialman, 1918D-609. 

Giving  of  chattel  mortgage  as  assignment  or 
change  of  interest  of  insured  within  pro- 
hibition in  fire  insurance  policy,  1918D- 
862. 

Priority  as  between  mechanic's  lien  claimant 
and  assignee  of  amoimt  due  contractor, 
1918C-1081. 

Right  of  assignee  to  enjoin  execution  sale, 
1918C-270. 

Rights  of  assignee  of  mortgage  as  against 
prior  equities,  1918C-479. 

See  also  Mines  and  Minebals. 

z:<:u/ 

ASSIGNMENTS    FOR   BENEFIT    OF 
CREDITORS. 

What  is  "necessary  expense"  in  administer- 
ing estate  under  assignment  for  benefit 
of  creditors,  1918D-921. 


ASSUMPSIT. 


ARABLE  LANDS. 


See  Money  Had  and  RECErvEa>. 


Changing    arable    land    into    wood    land    as 

waste,  1918D-043. 
Changing  meadow  into  arable  land  as  waste, 

1918D-543. 
Changing  pasture  into  arable  land  as  waste, 

1918r)-543. 


ATTACHMENT. 

Attachment  creditor  as  purchaser  pendente 
lite.  1918C-66. 

Right  of  attaching  creditor  to  enjoin  execu- 
tion  sale,  1918C-264. 


ARBITRATION  AND  AWARD. 

Impeachment  of  award  of  arbitrators  for 
mistake  of  fact  not  involving  exercise  of 
judgment,  1918C-974. 

Meaning  of  "about"  in  award  when  used 
with  reference  to  quantity,  1918D-705. 


ARGUMENT  OF  COUNSEL 

See  MisooNDXTCT  of  Cotjksel. 


ATTORNEYS. 

Allowance  of  attorney's  fees  in  action  to  en- 
join execution  sale,  1918C-306. 

Solicitation  of  employment  by  attorney  as 
ground  for  disbarment,  1918E-133. 

Validity  and  construction  of  statute  limiting 
amount  of  attorney's  fee  for  collection 
of  claim  against  federal  government, 
1918C-863. 

What  constitutes  practicing  law,  19180-131. 

See  also  Misconduct  of  Counsel. 


236  ANN.  QAS  DIGEST  (1918C-1918E). 

-  AUTHORITT.  BASTARDY. 


See  Refekebs. 

AUTOMATIC  BELLS. 

8ee  Eailboads. 

AUTOMOBIUBS. 

Conclusiveness  of  license  registry  as  to  own- 
ership of  motor  vehicle,   1918E-737. 

Effect  on  rights  and  liabilities  of  owner  or 
driver  of  automobile  of  failure  to  comply 
with  statutory  regulations  as  to  regis- 
tration, license,  displaying  number,  etc., 
1918D-847. 

Person  employed  in  connection  with  auto- 
mobile as  independent  contractor,  1918C- 
653. 

A\(rARD. 

See   Aebitbation    and    Award. 

BAIL. 

Deposit  of  money  in  lieu  of  bail  in  criminal 
cases,  1918D-536. 


Judgment  or  settlement  in  Ijastardy  proceed- 
ing as  barring  right  of  action  for  dam- 
ages for  seduction,  1918D-669. 


BECOME  DUE. 

Legal  meaning  of  ''balance  due,"  1918E-785. 

BELLS. 

See  Railboads. 

BENEFICIAL  ASSOCIATIONS. 

Construction  of  representation  that  person 
applying  for  reinstatement  of  insurance 
is  "in  good  health,"  1918I>-1005. 

Recourse  to  courts  by  members  of  benevo- 
lent, beneficial  and  similar  associations 
to  protect  property  rights,  1918E-H78. 

Waiver  of,  or  estoppel  to  deny,  forfeiture  of 
benefit  certificate  for  violation  of  con- 
tract of  insurance  other  than  failure  to 
pay  assessments  or  dues,  1918D-305. 

BENEFICIARIES. 

See  TausTS  and  Tbustbes. 


BAILMENTS. 

Right  of  bailee  to  deny  title  of  bailor,  1918B- 
1201. 

Unauthorized  use  of  chattel  by  bailee  as  con- 
version, 1918C-948. 


BALANCE  DUE. 

L^al  meaning  of  "balance  due,"  1918E-785. 

BANANA  PEELS. 

See  Streets  and  Highways. 


BENEFIT  OF  COUNSEL. 

See  Criminal  Law. 

BEQUESTS. 

See  Wnxs. 

BILLS  AND  NOTES. 

Giving  of  indemnity  as  prerequisite  to  re- 
covery of  amount  of  lost  negotiable  in- 
strument, 1918C-925. 


BANKRUPTCY. 

Assignee  in  bankruptcy  as  purchaser  pendente 

lite,  1918C-67. 
Effect  on  spendthrift  trust  of  bankruptcy  of 

beneficiary,  1918D-91. 
What  is  "necessary  expense"  in  admin  istet' 

ing  estate  in  bankruptcy,  1918D-922 


BANKS. 

Construction  of  statute  prescribing  form  of 
indictment  for  violation  of  banking  law, 
ini8C-558. 


BILLS  OF  LADING. 

Meaning  of   "machinery"   in   bill   of  lading, 
1918E-209. 


BINDING  SLIPS. 

See  Emplotebs'  LiABiLirr  iNSURAircfB. 


BOARDS. 

See  Excise  Commissioners;   Insurance; 

SUPER\1S0RS. 


CUMULATIVE  INDEX  TO  NOTES. 


237 


"BOHEMIAN  OATS"  CONTRACTS. 

See  Illegal  Contbacts. 

BOIUCR  INSPECTION. 

See  Masteb  a>'d  Seevaki. 

BONA  FIDE  PURCHASERS. 

See  Deeds;   Vexdob  a>d  Pubchaseb, 

BONDS.  ' 

Necessity  and  sufficiency  of  bond  in  action 

to  enjoin  execution  sale,  1918C-301. 
See  also  Appeal  and  Ebkob;  Building  Con- 

TBACTS;         InDEMNITT;         INJUNCTIONS  j 
SUBEIYSHIP. 

BOROUGHS. 

**Village"     as     svnonAmous     with     borough, 
1918D-266 


BUIIJ)INGS.  \, 

Erection  of  buildings  in  public  parks  and 
squares,   1918E-489. 

Liability  of  municipality  for  unsafe  condi- 
tion of  building  maintained  for  public 
use  or  amusement,  1918I>-115. 

Person  employed  in  building  work  as  inde- 
pendent contractor,  1918C-ti54. 

Power  of  United  States  to  condemn  land  for 
public  building  site,  1918E-44. 


BURDEN  OF  PROOF. 

Burden  of  proof  as  to  validity  of  subsequent 

marriage,  1918E-1233. 
Burden  of  proof  in  action  to  enjoin  execution 

sale,   1918C-304. 
Burden  of  proof  of  existence  of  relation  of 

independent  contractor,  1918C-632. 


BURGLARY. 

Construction  of  statute  prescribing  form  of 
indictment  for  burglary,  19180-558. 


BRIDGES. 

Person  contracting  for  construction  of  bridge 
as  independent  contractor,  1918C-654. 


BROKERS. 

Revocation  of  authority  of  real  estate  broker, 

1918D-339. 
What    constitutes    implied    contract    to    pay 

broker  for  sale,  lease  or  mortgage  of  real 

estate,  1918C-1064. 
What  constitutes  performance  entitling  loan 

broker  to  commission,  1918C-609. 


BRUSH    LOTS. 


Changing   pasture   into   brush   lot   as   waste, 
1918D-543. 


BUILDING   CONTRACTS. 

Assignment  of  proceeds  of  contract  by  build- 
ing contractor,  subcontractor  or  mate- 
rialman, 1918r)-609. 

Loan  of  money  to  contractor  as  giving  right 
to  mechanic's  lien  or  to  recovery  on  con- 
tractor's bond,  1918D-350. 


BUILDING  LANDS. 

Changing    meadow    into    building    land    as 
waste,   19]8D-543. 


BURIAL. 

See  Dead  Bodies. 

BUSINESS. 

iValidity  of  statute  or  ordinance  requiring 
place  of  business  (other  than  liquor 
saloon)  to  close  at  certain  hour,  1918I>- 
200. 

BY-LAIVS. 

See   COBPORATIONS. 

-.'i3  .'  rA^f  LiLUtHJ  J 

CANALS. 

Persona  employed  in  connection  with  canal  as 
independent  contractor,  1918C-655. 

Right  to  injunction  against  execution  sale  of 
property  of  canal  company,  1918C-229. 

CANCELLATION. 

See  Insubancs 

CANDIDATES. 

See  Elections. 

CAPITAL  SUItf. 

See  AwNuiTiES:  Tbusts  and  Trustees. 


233 


4N^>,CAS  DIGEST  (1918C-1918E). 


CAR  DOORS. 

8ee    Cabbiebs   of   Passbnqebs. 

CARRIERS  OF  GOODS. 

Delay  in  transportation:  measure  of  damages 
for  carrier's  delay  in  transporting  prop- 
erty intended  for  exhibition  purposes, 
1918E-1057. 

— unusual  and  excessive  amount  of  freight  to 
be  handled  as  excusing  delay  in  trans- 
poration  by  carrier,  1918D-143. 

Freight  charges:  validity  and  enforcement  of 
contract  by  carrier  to  carry  goods  at 
discriminating  rate  fixed  by  mistake, 
1918E-458. 

Hours  of  service  act:  carriers  subject  to 
federal  hours  of  service  act,  1918C- 
797. 

Method  of  transportation:  effect  of  liability 
of  carrier  of  goods  by  land  of  departure 
from  agreed  method  of  transportation, 
1918C-1075. 

Termination  of  liability:  what  constitutes 
reasonable  time  for  remoA^al  of  goods  by 
consignee  from  premises  of  carrier, 
1918E-1114. 

Uniform  sales  act:  construction  of  uniform 
sales  act  with  respect  to  effect  of  de- 
livery of  goods  to  carrier,  1918D-400. 

— stoppage  in  transitu  imder  imiform  salea 
act,  1918D-41L 


':     CARRIERS    OF   IJVE    STOCK. 

Carriers  subject  to  federal  hours  of  serrice 

act,  1918C-797. 
Effect  of  liability  of  carrier  of  goods  by  land 

of    departure    from    a^eed    method    of 

transportation,  1918C-1075. 


Tickets- and  fares:  validity  of  rule  of  car- 
rier requiring  passenger  to  pay  fare  in- 
to box,  register,  or  the  like,  1918D-473. 

— ^what  is  reasonable  sum  which  passenger 
may  tender  in  payment  of  fare,  1918D- 
182. 


CARRYING  CHARGES. 

See  Trusts  a>d  Tbustebs. 

CARRYING  SIDE  LINE. 

*^  See  Agency, 

CASH  REGISTERS. 

Person  employed  in  connection  with  repair 
of  cash  register  as  independent  contract- 
or, 1918C-655. 

CASUALTY. 

Casualty  as  excuse  for  failure  to  comply  with 
Federal  Hours  of  Service  Act,  1918C- 
808. 

CAUTIONARY  INSTRUCTIONS. 

See  Instbuctions. 

CEMETERIES. 

See  Deiao  Bodies. 

CERTIFICATES. 

See     ACKN"OWLED&MENT ;      BENEFICIATi     ASSO- 
CIATIONS; Death  Certificates. 


CARRIERS  OF  PASSENGERS. 

Collisions:  liability  of  street  railway  for  in- 
jury to  passenger  caused  by  collision  at 
railroad  crossing,  1918C-47. 

Doors:  liability  of  carrier  for  injury  to  pas- 
senger caused  by  car  door,  1918C-377. 

Ferries:  liabilitv  of  owner  of  ferrv  to  pas- 
sengers, 1918E-1083. 

Hours  of  service  act:  carriers  subject  to 
federal  hours  of  service  act,  1918C— 
797. 

Larceny  or  robbery:  liability  of  carrier 
(other  than  sleeping  car  company)  for 
larceny  from  or  robbery  of  passenger  by 
stranger,  1918E-582. 

Riding  on  platform :  validity  and  enforcement 
of  rule  of  carrier  prohibiting  passengers 
from  riding  on  platform,  1918C-534. 

Riding  on  running  board :  contributory  negli- 
gence of  passenger  in  riding  or  standing 
on  running  board  of  open  street  car, 
,1918C-445. 


CESTUI   QUE   TRUST. 

See  Trusts  and  Teustbses. 

CHALLENGING  OPPONENT. 

See  Misconduct  of  CouNSBXb 

CHANGE  OF  INTEREST. 

See  FiBE  Insubance. 

CHANGE  OF  OFFICER&k 

See   COEPORATIONS. 

CHARITIES. 

Masonic  Lodge  or  body  as  charitable  insti* 
tution.  1918E-1043. 


CUMULATIVE  INDEX  TO  :N^0TES. 


239 


.  CHARTER. 

Sm  Corporations;  Expiration  of  Charter; 
Municipal  Corporations. 


CHATTEL  MORTGAGES. 

Giving  of  chattel  mortgage  as  assignment  or 
change  of  interest  of  insured  within  pro- 
hibition in  fire  insurance  policy,  1918D- 
862. 


,Yx>ia     CW>THING.     '7   o 

Admissibility  in  evidence  of  articles  of 
clothing  to  establish  identity  of  dead 
body,  1918C-702. 


CLOUD  ON  TITLE. 

Bight  to  injunction  against  execulJon  sale 
to  prevent  cloud  ou  title  to  land,  1918C- 
172. 


CHATTELS. 

See  Bailments. 


CLUBS. 

See  Societies  and  Clubs. 


CHILDREN. 

See  Infants;  Parent  and  Child. 

CHURCHES. 

See  Religious  Societies;  Schools. 


COLD    STORAGE. 

See  Food  and  Drugs. 

COLLECTIONS. 

See  Attornetts.  ' 


CITIZENSHIP. 

Naturalization  of  alien  enemy,  1918C-728, 

CIVIL  \VAR. 

Validity  and  construction  of  statute  limit- 
ing amount  of  attorney's  fee  for  collec- 
tion of  civil  war  damage  claim  against 
federal  government,  1918C-869. 

CLAIMS. 

See  GOVERWMENT;    IMUNICIPAL   CORPORATIONa 


COLLEGES. 

See  Schools. 

^      COLLISIONS. 

See  Carriers  of  Passenqebs. 

COLOR   OF  TITLE. 

Operation  as  color  of  title  of  deed  or  contract 
by  married  woman  invalid  for  defective 
acknowledgment,   1918E-653. 

Operation  as  color  of  title  of  instrument  by 
married  woman  invalid  for  want  of  ac- 
knowledgment, 1918E-  636. 


CLAIMS  DUE. 

Legal  meaning  of  "claims  due,"  1918EI-787 


COMBINATIONS. 

See  Labor  Combinations. 


CLASS. 

See  Wills. 


COMMISSIONS. 

See  Brokers. 


CLERGYMEN. 

See  Religious  Societieb. 


COMMON   DISASTER. 

See  Survivorship. 


CLOSING   HOURS. 

See  Business. 


COMMON-LAW  MARRIAGE. 

See  Marriage. 


240  ANN.  CAS  DIGEST  (1918C-1918E). 

COMMUNITY    PROPERTY.  CONFIDENCE    GAME. 

See  Husband  and  Wife. 


COMPENSATION. 

See  Attobnets;  Bbokees;  Conttiaots;  Em- 
INBNT  Domain;  Public  OmcEBS;  Sttbk- 

TYSHIP. 


Construction  of  statute  prescribing  form  of 
indictment  for  confidence  game,  1918C- 
558. 


CONFINED  TO  HOUSE. 

See  Insxjeance. 


COMPROMISE  AND  SETTLEMENT. 

Admissibility  of  statement  of  fact  made  in 
connection  with  offer  of  compromise, 
191SE-439. 

Judgment  or  settlement  in  bastardy  proceed- 
ing as  barring  right  of  action  for  dam* 
ages  for   seduction,   1918D-669. 


COMPULSORY  MIUTARY  SERVICE. 

See  Abht  and  Navt. 


CONFLICT   OF   LAWS. 

See  CouBTS;   Divorce;  Garnishment;  Mab* 

BIAGE. 


CONGESTION  OF  TRAFFIC. 

See  Cabbiebs  of  Goods. 


CONSCRIPTION. 

See  Abmy  and  Navy. 


CONCEALMENT  OF  FACTS. 

See  ExECUTOBS  and  Administbatobs. 


CONSECUTIVE    SERVICE. 

See  Public  Officios. 


CONCRETE    TANKS. 

FerBone  contracting  to  build  concrete  tank 
as  independent  contractor,  1918C-656. 


CONDEMNATION. 

See  Eminent  Domain. 

CONDITIONAL  SALES. 

Conditional  sale  as  within  purview  of.  Uni- 
form Sales  Act,  1918D-408. 

Right  of  recovery  for  property  sold  and  de- 
livered conditionally  when  property  is 
destroyed  without  fault  of  purchaser  be- 
fore price  falls  due,  1918D-381. 

CONDITIONAL  SIGNING. 

See   SUBETYSHIP. 

CONDITIONAL  SUBSCRIPTION. 

See  Stock  and  Stockholdebs. 

CONDITIONS. 

See  FiBE  Insubance. 


CONSIDERATION. 

See  Suretyship. 

CONSORTIUM. 

See  Husband  and  Wife. 

CONSTITUTIONAL  LAAV. 

Army  and  Navy:  compulsory  military  serv- 
ice, 1918D-100. 

Attorneys:  validity  and  construction  of  stat- 
ute limiting  amount  of  attorney's  fee  for 
collection  of  claim  against  federal  gov- 
ernment, 1918C-863. 

Business:  validity  of  statute  or  ordinance  re- 
quiring place  of  business  (other  than 
liquor  saloon)  to  close  at  certain  liour, 
1918D-200. 

Corporations:  validity  and  effect  of  provi- 
sion in  charter  statute,  or  by-law  creat- 
ing lien  on  stock  in  favor  of  corporation, 
1918D-368. 

Divorce:  validity  and  construction  of- statute 
requiring  service  of  notice  on  public  of- 
ficial in  divorce  suit,  1918D-1098. 

Elections:  constitutional  or  statutory  provi- 
sions relating  to  elections  as  applicable 
to  primary  elections,  1918E-79. 

fr— validity  and  construction  of  statute  regu- 
lating contribution  by  person  other  tlian 
candidate  to  election  expenses,  191SE- 
173. 

—validity  of  municipal  authorization  of 
woman  suffrage,  19180-906. 


CUMULATIVE  INDEX  TO  NOTES. 


241 


Explosions  and  explosives:  validity  of  ordi- 
nance regulating  keeping  of  gasolene  or 
other  explosive  witliin  municipal  limits, 
1918E-145. 

HaAvkers  and  peddlers:  validity  of  license 
tax  or  fee  imposed  on  liawker  or  peddler 
as  regards  uniformity,  1918E-109. 

Indictments:  validity  and  construction  of 
statute  prescribing  form  of  indictment, 
1918C-551. 

Initiative  and  referendum:  constitutionality 
of  initiative  and  referendum  provisions 
either  in  state  constitutions  or  municipal 
charters,  1918D-604, 

— validity  of  statute  other  than  local  option 
law,  which  takes  effect  only  upon  rati- 
fication by  voters,  1918E-573. 

Insurance:  validity  of  statute  delegating  to 
officer  or  board  regulation  of  insurance 
companies,    1918E-479. 

Intoxicating  liquors:  validity  of  statute  mak- 
ing possession  of  federal  license  prima 
facie  evidence  of  violation  of  liquor  laAV, 
1918D-775. 

Labor:  validity  of  statute  fixing  minimum 
'  wage  rate  for  private  employment, 
1918I>-465. 

Local  option:  constitutionality  of  local  op- 
tion  laws.   1918E-874. 

Picketing:  validity  of  statute  or  ordinance 
pi'ohibiting  picketing,  1918E-54. 

Public  officers:  validity  and  construction  of 
statute  limiting  consecutive  service  by 
public   officer,    I918E-358. 

Statutes:  impeachment  of  act  of  legislature 
l>v  reference  to  legislative  journals, 
l'918D-253. 

— right  of  ministerial  officer  to  question 
validity  of  statute,  1918D-1199. 

Sunday  laws  as  directed  against  particular 
occupations,  1918E-inO. 

Taxation:  power  of  municipal  corporation  to 
grant  exemption  from  taxation,  1918E- 
1088. 

— validity  of  special  assessment  levied  by 
front  foot  instead  of  according  to  bene- 
fit, 1918D-432. 

Tips:  validitv  and  construction  of  anti-tip- 
ping  act,*  1918D-238. 

Weights  and  measures:  validity  of  legisla- 
tion for  prevention  of  fraud  in  weights 
and  measures,  19I8D-150. 

See  also  Tei-egrapiis  and  Telephones. 


CONSTRUCTION. 

See  CoxTRACTS;  Criminal  Law;  Divorce; 
Guaranty :  Hours  of  Service  Acts  ;  In- 
surance: Intoxicating  Liquors;  Land- 
lord AND  Tenant;  Putblic  Officers; 
Sales:  Statut^es:  Stock  and  Stock- 
holders; Tips;  Workmen's  Compensa- 
tion Acts. 


CONSTRUCTIVE  EVICTION. 

See  Landlord  and  Tenant. 
Ann.  Cas.  Dig.  1918C-E.— 16. 


CONTEST. 

See  Wills. 

CONTIGUOUS. 

Meaning  of  term  "contiguous,"  1918E-798. 

CONTINUING  GUARANTY. 

See  Guaranty. 

.  j 
CONTRACTS. 

"About:"  meaning  of  "about"  in  contract 
when  used  with  reference  to  quantitv, 
1918D-693. 

Alien  enemies:  contract  rights  of  alien  enemy, 
1918C-713. 

Breach  of  contract:  carrying  side  line  as 
breach  of  contract  bv  traveling  sales- 
man,  1918C-952. 

Building  contracts:  assignment  of  proceeds 
of  contract  by  building  contractor,  sub- 
contractor  or   materialman,    1918D-609. 

— loan  of  money  to  contractor  as  giving 
right  to  mechanic's  lien  or  to  recovery 
on  contractor's  bond,  1918D-350. 

Implied  contracts:  what  constitutes  implied 
conti-act  to  pay  broker  for  sale,  lease  or 
mortgage   of   real   estate,    1918C-1064. 

"Pro  rata:"  meaning  of  "pro  rate"  or  "pro 
rata,"  as  used  in  contract,  1918C-792. 

Rescission  of  contract:  necessity  that  aban- 
donment or  rescission  of  written  con- 
tract for  sale  of  goods  be  in  writing, 
1918C-1213. 

United  States:  rights  with  respect  to  annul- 
ment, suspension  or  modification  of,  or 
additional  compensf.tion  under,  contract 
with  United  States  government,  1918E- 
5. 

Validity:  contract  entered  into  by  intoxi- 
cated person  as  void  or  voidable,  1918E— 
330. 

— rights  of  parties  under  deed  or  contract  by 
married  woman  invalid  for  defective  ac- 
knowledgment, 1918E-648. 

— rights  of  parties  under  deed  or  contract  by 
married  Avoman  invalid  for  want  of  ac- 
knowledgment, 1918E-631. 

— validity  and  enforceability  of  agreement  by 
parties  interested  to  dispense  with  pro- 
bate of  will,  1918E-1218. 

— validity  and  enforcement  of  contract  by 
carrier  to  carry  goods  at  discriminating 
rate  fixed  by  mistake,  1918E-458. 

— validitv  of  agreement  by  seller  of  cor- 
porate stock  to  repurchase  on  demand, 
1918D-744. 

— validity  of  contract  intended  to  facilitate 
procuring  of  divorce,  1918E-902. 

— validity  of  contract  made  to  induce  mar- 
riage between  third  persons,  1918C-820. 

— validity  of  contract  provision  as  to  inter- 
est other  than  provision  fixing  usurious 
rate,  1918E-747. 

—validity  of  "endless  chain"  or  "Bohemian 
Oats"  contract,  1918D-476. 


242 


ANl^.  CAS  DIGEST  (1918C-1918E). 


^'alidity:  validity  of  provision  in  employers' 
liability  insurance  contract  giving  in- 
surer  control   of   settlement,   1918C-405. 

Voting  contest:  fraud  in  voting  or  guessing 
contest,  1918C-750. 

See  also  Bbxeficiai.  Associations;  Ease- 
ments ;  Frauds,  Statxtte  of;  Independ- 
ent CONTBACTOES;  InSUKANOE;  LAND- 
LORD AND  Tenant;  Marriage ;  Master 
AND  Servant;  Mechanics'  Liens  ; 
Mqitot  Had  and  Received;  Sales; 
Specific  Performance. 


CONTRIBUTION. 

Contribution  between  legatees  or  devisees  on 

renunciation  of  will  by  widow,   1918C- 

415. 
Running    of   statute   of    limitations    against 

contribution    between    sureties,    1918E- 

518. 


CONTRIBUTIONS. 

See  Elections. 

CONTRIBUTORY  NEGLIGENCE. 

Contributory  negligence  as  affecting  liability 
of  railroad  company  for  personal  injury 
resulting  from  fire,' 1918E-829. 

Contributory  negligence  as  affecting  liabil- 
ity of  sportsman  for  shooting  another 
while  hunting,  1918C-389. 

Contributory  negligence  of  passenger  in  rid- 
ing or  standing  on  running  board  of  open 
street  car,  1918C-445. 

Presence  of  electric  bell  or  similar  device  at 
railroad  crossing  as  excusing  traveler 
from  duty  to  look  and  listen,  1918D-388. 

CONVERSION. 

Unauthorized  use  of  chattel  by  bailee  as  con- 
version, 1918C-948, 

CONVEYANCES. 

See  Deeds. 


CORONERS. 

What    is    "necessary    expense"    incurred   by 
coroner,  1918D-926. 

CORPORATIONS. 

Alien  enemies:    corporation  as  alien  enemy, 

1918C-710. 
Officers:  statutory  liability  of  officer  for  debts 

of  corporation  as  affected  by  change  of 

officers,  1918D-796. 
Quo    warranto:    joinder    of    corporation    as 

party     in     quo     warranto     proceeding, 

1918D-222. 


Qua  warranto:  proper  parties  defendant  in 
quo  warranto  proceedings  against  cor- 
poration,  1918D-228. 

Stock  and  stockholders:  admissibility  of  parol 
evidence  to  show  that  subscription  to 
stock  was  conditional,  1918C-853. 

— right  of  minoritj-  stockholder  or  stock- 
holders to  maintain  suit  to  wind  up  or 
dissolve  corporation,   1918E-424. 

— right  of  stockholder  to  compel  duplication 
of  lost  certificate,  1918E-66. 

— aright  to  injunction  against  execution  sale 

','     of  corporate  stock,  1918C-213. 

— validity  and  construction  of  agreement  by 
seller  of  corporate  stock  to  repurchase  on 
demand,  1918D-744. 

—  validity  and  effect  of  provision  in  charter, 
statute,  or  by-law  creating  lien  on  stock 
in  favor  of  corporation,  1918D-368. 

See  also  Religious  Societies. 


CORROBORATION. 

See  Seduction. 

CORRUPT  PRACTICES  ACTS. 

See  Elections. 

COSTS. 

See  Wills. 

COUNSEL. 

See  Criminal  Law. 

COUNTIES. 

What  is  "necessary  expense"  in  connection 
with  administration  of  county  affairs, 
1918D-926. 


COUNTY  CLERKS. 


What    is    "necessary    expense' 
couflty  clerk,  1918D-926. 

COURTS. 


incurred   by 


Jurisdiction  of  action  to  enjoin  execution 
sale.  19180-277. 

Jurisdiction  of  court  of  action  against  for- 
eign sovereign  or  foreign  state,  1918E- 
527. 

Jurisdiction  of  court  to  entertain  suit  to  dis- 
solve corporation  at  instance  of  minority 
stockholder,   1918E-424.      . 

Power  of  courts  of  equity  to  enjoin  elections, 
1918E-1153. 

Right  of  court  to  review  action  of  church  au- 
thorities in  disciplining  member,  1918C- 
622. 

See  also  Beneficial  Associations;  Judges; 
Libel  and  Slander. 


CUMULATIVE  INDEX  TO  XOTES. 


243 


COVENANTS. 


HT 


Outstanding  special  assessment  as  breach  of 
covenant  against  incumbrances,  1918D- 
975. 

Right  of  lessee  to  enforce  covenant  to  pay 
for  improvements  or  repairs  against  suc- 
cessor of  reversion,  1918D-1180. 


CREDITORS. 

See    Attachmext;    Debtob    axd    Cbeditob; 
Judgments;  Suretyship. 


CRIMINAL    LAW. 

"Armv  and  navv:"  offenses  against  conscrip- 
tion law.  lihSD-lOO. 

Bail:  deposit  of  money  in  lieu  of  bail  in 
criminal  cases,  1918D,  536. 

Counsel:  right  of  accused  person  to  benefit 
of  counsel  before  pleading,  1918D-287. 

Dying  declarations:  admissibility  of  dying 
declaration  on  behalf  of  defendant, 
1918C-425. 

Extradition:  right  after  international  ex- 
tradition to  try  prisoner  for  crime  not 
designated  in  requisition,  1918D-1030. 

— who  is  fugitive  from  justice  within  pur- 
view of  interstate  extradition  laws, 
1918D  1011. 

Indictment  and  information:  meaning  of 
"about"  in  indictment  or  information 
Avhen  used  with  reference  to  quantity, 
1918D-706. 

— validity  and  construction  of  statute  pre- 
scribing form  of  indictment,  1918C-551. 

Intoxicating  liquors:  possession  of  federal 
license  as  evidence  of  violation  of  liquor 
law,  1918D-775. 

Libel  and  slander:  necessity  that  justification 
of  charge  of  commission  of  crime  be 
justification  of  precise  charge,  1918G- 
1133. 

Seduction:  necessity  in  criminal  prosecution 
for  seduction  that  female  should  be  cor- 
roborated, and  elements  to  which  cor- 
roboration must  extend,   1918E-468. 

See  also  Cabbieks  of  Passengers. 


CULTIVATION. 

Failure  to  cultivate  land  as  waste,   1918D- 
543. 


CUSTODIAN  OF  ENEMY  PROPERTY. 

'Powers    and   duties    of   custodian    of   enemy 
property,  1918C-713. 


CUSTODY    OF  LAW. 

Right  to  injunction  against  execution  sale  of 
property  in  custody  of  law,  1918C-230. 

;OrH  3MAcS   > 

DAMAGES. 

Carriers  of  goods:  measure  of  damages  for 
carrier's  delay  in  transporting  property 
intended  for  exhibition  purposes,  1918E'- 
1057. 

Carriers  of  passengers:  measure  of  damages 
recoverable  from  carrier  for  larceny  from 
or  robbery  of  passenger  by  stranger, 
1918E-586. 

Dentists:  measure  of  damages  recoverable 
against  dentist  for  injuries  to  patient, 
1918C-1192. 

Injunctions:  duty  of  injured  party  to  mini- 
mize damages  resulting  from  improper 
suing  out  of  injunction,  1918C-673. 

— liability  for  damages  for  wrongful  issu- 
ance of  injunction  against  execution 
sale,  1918C-315. 

Personal  injuries:  humiliation  or  mortifica- 
tion on  account  of  disfigurement  as  ele- 
ment of  damages  recoverable  for  per- 
sonal injuries,  1918D-65. 

Uniform  sales  act:  measure  of  damages  for 
breach  of  contract  of  sale  under  uniform 
sales  act,  1918D-400. 


.-.i'.I 


DEAD  BODIES. 


Evidence  admissible  to  establish  identity  of 

dead  body,  1918C-697. 
Right  of  property  in  dead  bodies  of  human 

beings,  1918D-733. 


CROPS. 

Removing  crops  as  waste,  1918D-543. 

CROSS-EXAMINATION. 

See  Witnesses. 


DEATH. 

Facts  which   must   be    shown   in   connection 

with  absence  to  establish  presumption  of 

death,  1918D-758. 
Presumption  of  death  on  issue  of  validity  of 

subsequent  marriage,  1918E-1236. 
Validit.v    of    provision    in    will    relating    to 

survivorship  in  common  disaster,  1918D- 

842. 


CROSSINGS. 


DEATH   BY   WRONGFUL   ACT. 


See   Cabbiebs   of   Passengers; 
Streets  and  Highways. 


Railroads  ; 


Divorce  as  affecting  right  of  child  to  recover 
for  death  of  parent,  1918E-419. 


244 


ANN.  CAS  DIGEST  (1918C-1918E). 


Effect  of  recovery  for  death  by  wrongful  act 
on  rights  of  posthumous  child  of  de< 
ceased,   1918D-556, 


DELAY  IN  TRANSPORTATION. 

See  Cabbibbs  of  Goods. 


DEATH    CERTIFICATES. 

PhjBician's    death    certificate    as    evidence^ 
1918C-761. 


DEBT  DUE. 


JO 


Legal  meaning  of  "debt  due,"  1918E-788. 


DELIBERATIONS. 

See  JuBY. 

DEPOSITIONS. 

Identification   of   exhibit   referred  to  in   de- 
position, 1918E-282. 


DEBT  DUE  IN  SAME  RIGHT. 

Legal  meaning  of  "delrt  due  in  same  right^** 
1918E-789. 


DEBTOR    AND    CREDITOR. 

Eight  of  creditor  to  enjoin  execution  sale, 
1918C-262. 

Rights  and  liabilities  of  alien  enemy  with 
respect  to  pre-existing  debt,  1918C-713. 

See  also  Attachment;  Cobpobations;  Judg- 
ments;  SCTBETYSHIP. 


DECEDENTS'    ESTATES. 

See    Advancements;    Exectj-tors    and    Ad« 

MINISTBATIOBS ;    WITNESSES. 


DECLARATIONS. 

See  Admissions  and  Declarations;  Dting 

DECLAliATIONS. 

DECREE  OF  DISTRIBUTION. 

See  Executors  and  Administbatobs, 


DEPOSIT   OF   MONET. 

See  Bail. 

DEPOTS. 

See  Railroads. 

DESCENT  AND  DISTRIBUTION. 

See  Advancements. 

DESCRIPTION. 

See  Deeds;  Municipal  Gorpobationb. 

DESCRIPTIVE   \(rORDS. 

See  Statutes, 

DESTRUCTION  OF  PROPERTY. 

See  CoNDiTioNAi.  Sales. 

DEVIATION. 


DEEDS. 

Accretions:  conveyance  as  including  prior 
accretion,   1918E-244. 

Acknowledgment:  rights  of  parties  under 
deed  or  contract  by  married  woman  in- 
valid for  defective  acknowled.gment, 
1918E-648. 

—  rights  of  parties  under  deed  or  contract  by 
married  woman  invalid  for  want  of  ac- 
knowledgment, 1918E-631. 

Covenants:  outstanding  special  assessment 
as  breach  of  covenant  against  incum- 
brances, 1918D-975. 

Deed  as  mortgage:  effect  of  lapse  of  time  on 
right  to  have  deed  declared  mortgage, 
1918C-755. 

Reformation:  right  to  reform  description  in 
deed  or  mortgage  as  against  purchaser 
without  notice,  1918D-147. 

See  also  Easements  ;  Lis  Pendens. 


See  Cabbiebs  of  Goods;   Cabibiebs  of  Livk 
Stock. 


DEVISEES. 

Right    of    devisee   to   enjoin    executi<m    Bale, 

19180-260. 
See  also  Equitable  Elecwok. 


DISABILITY. 


See  Insukanob. 


DISASTER. 


See  SuBvrvoBSHiP. 


CUMULATIVE  lis^DEX  TO  :N'0TES. 


245 


DISBARMENT. 

See  Attobneys. 

DISCIPLINE. 

See  Religious   Societibb, 

DISCLOSURE. 

See  JiRY 

DISCRIMINATION. 

See  Cabbiebs  of  Goods;  IxscBANOli 

DISFIGUREMENT. 

See  Damages. 

DISINTERMENT. 

See  Dead  Bodies, 

DISPLAYING   NUMBER. 

•  See  Automobiles. 

DISSOLUTION. 

See  COBPOBATIOXS ;  Paetxebship;   Relioious 
Societies. 

DISTRIBUTEES. 

Bight  of  distributee  to  enjoin  execution  sale, 
1918C-260. 


Death  by  wTongful  act:  divorce  as  afifecting 
right  of  child  to  recover  for  death  of 
parent,   1918E-419. 

Remarriage:  effect  of  marriage  within  pro- 
scribed time  after  divorce,  1918E-557. 

— extraterritorial  effect  of  divorce  decree  or 
statute  prohibiting  remarriage  of  party 
or  parties,   1918E-1074, 

— presumption  of  divorce  on  issue  of  valid- 
ity of  subsequent  marriage,  1918E-1237. 

Statutes:  validity  and  construction  of  stat- 
ute requiring  service  of  notice  on  public 
official  in  divorce  suit,  1918D-1098. 

Support  of  children:  liability  of  father  for 
support  of  children  after  divorce  decree 
in  his  favor  not  providing  for  custody 
or   maintenance   of   children,   1918C-939. 

Witnesses:  effect  of  divorce  on  competency  of 
husband  or  wife  as  witness,  1918E-193. 


DOORS. 

See  Carbiebs  of  Fassengebs. 


DOUBLE  TRACK. 

Meaning  of  "double  track,"  1918E-243. 


DRAINAGE. 

Digging  drain  in  land  as  waste,  1918D-543. 
Person  contracting  to  construct  sewer  or  lay 

sewer    pipe    as    independent    contractor, 

1918C-658. 


DRUGGISTS. 

Rights  and  liabilities  of  druggist  selling  liq- 
uor on  prescription  by  physician,  1918E- 
923. 


DISTRIBUTION  OF  ESTATE. 

See  ExECUTOBs  axd  Administbatoes, 


DRUMMERS. 

See  Agency. 


DISTRICT  ATTORNEYS. 

What  is  "necessarv  expense"  incurred  by  dia- 
trict  attorney,   1918D-927. 


DRUNKENNESS. 


CJontract  entered  into  by  intoxicated  person 
as  void  or  voidable,  *1918E-330. 


DISTRICT  OF  COLUMBIA. 

Power  of  United  States  to  condemn  land  in 
District  of  Columbia..  1918E-43. 


DUE. 

Legal  meaning  of  "due,"  1918E-756. 


DIVORCE. 


DUE  AND   OWING 


Contracts:    validity  of  contract  intended  to 

facilitate  procuring   of  divorce,   1918E-      Legal  meaning  of  "due  and  owing,"  1918E- 
902.  782. 


246 


A^^>T.  CAS.  DIGEST  (1918C-1918E). 


DUE   AND   PAYABLE. 

Legal  meaning  of  "due  and  payable,"  1918E- 

784. 


DUE  DATE. 

Legal  meaning  of  "due  date,"  1918E-785. 

DUE  IN  FULL. 

Legal  meaning  of  "due  in  full,"  1918E-785. 


DYING  DECLARATIONS. 

Admissibility  of  dying  declaration  on  behalf 
of  defendant,  1918C-425 


EARNINGS. 

See  Insufficiency  of  Eabnixgs. 

EASEMENTS. 

Meaning  of  term  "necesearv"  as  applied  to 

easement,  1918D-931. 
Validitj'   of  conveyance  of  specific  right  or 

easement  in  land  by  one  tenant  in  com- 

mon,  1918C-92. 


Liability  of  electric  company  maintaining 
wires  in  close  proximity  to  those  of  an- 
other company  for  injury  to  employee  of 
latter  company,  1918D-4. 

Liability  of  one  maintaining  electric  Avires 
over  private  property,  as  distinguished 
from  highway,  for  injuries  received  by 
adult  coming  in  contact  therewith, 
1918C-594. 

Person  employed  in  connection  with  electrical 
work  as  independent  contractor,  1918C- 
655. 


ELEVATORS. 

Person  contracting  to  repair  or  install  ele- 
vator as  independent  contractor,  1918C- 
655. 


EMBEZZLEMENT. 

Construction  of  statute  prescribing  form  of 
indictment  for  embezzlement,  1918C-558. 

Necessity  that  justification  of  charge  of  em- 
bezzlement be  justification  of  precise 
charge,  1918C-1135. 


EMERGENCY. 

Emergency  as  excuse  for  failure  to  comply 
with  federal  hours  of  service  act,  1918C- 
81L 


ELECTIONS. 

Campaign'  contributions:  validity  and  con- 
struction of  statute  regulating  contribu- 
tion by  person  other  than  candidate  to 
election  expenses,  1918E-173. 

Injunctions:  power  of  courts  of  equity  to  en- 
join elections,   1918E-1153. 

Notice  of  election:  meaning  of  "about"  in 
notice  of  election  when  used  with  ref- 
erence to  quantity,   1918D-706. 

Primaries:  constitutional  or  statutory  provi- 
sions relating  to  elections  as  applicable' 
to  primary  elections,  1918E-79. 

Withdrawal  of  candidacy  for  public  office, 
1918E-362. 

Woman  suffrage:  validity  of  municipal  au- 
thorization of  woman  suffrage,  1918C- 
906. 


ELECTRIC  BELLS. 

See  Railroads. 

ELECTRICITY. 


EMINENT  DOMAIN. 

Condemnation    of    land    for    public    library, 

1918E-122. 
Construction  of  public  lavatory  in  street  as 

constituting    nuisance    or    as    entitling 

abutting  owner  to  compensation,  191SD- 

906. 
Nature  and  extent  of  power  of  United  States 

to  condemn  land,  1918E-39. 
What   is   "necessary   expense"   incidental    to 

condemnation  proceeding,  1918D-024. 


EMPLOYERS'    LIABILITY    INSUR- 
ANCE. 

Effect  of  binding  slip  or  receipt  as  employers' 
liability  insurance  contract,   1918C-375. 

Validity  and  construction  of  provision  in  em- 
ployers' liability  insurance  contract  giv- 
ing insurer  control  of  settlement,  1918C- 
405. 


EMPLOYMENT. 

See  Labob  Laws;  Master  and  Sebvant. 


Liability  of  electric  company  for  injuries 
resulting  from  one  of  its  wires  charging 
wire  of  other  company  or  person,  1918C-- 
916. 


•'ENDLESS  CHAIN"  CONTRACTS. 


See  Illegal  Contracts. 


CUMULATIVE  INDEX  TO  NOTES. 


247 


ENEMIES. 

See  Wab. 

EQUITABLE  ELECTION. 

Effect  of  widow's  renunciation  of  will  on 
rights  of  other  legatees  or  devisees, 
1918C-412. 

EQUITABLE  INTEREST. 

See  Bona  Fide  PcRCHASia. 


EQUITABLE  TITLE. 

6ee  FiBE  IxsuBAzifCE. 


EQUITIES. 

See    MOBTGAGES. 

EQUITY. 

See  Injunctions. 

ESTABLISHMENT. 

See  Labob  Laws. 

ESTOPPEL. 

Estoppel  of  emplover  to  assert  independence 

of  employee,  19180-632. 
Estoppel  to  deny  validity  of  instrument  by 

married  woman   on  ground  of  defective 

•acknowledgment,  1918E-651. 
Estoppel  to   deny  validity  of  instrument  by 

married   woman   on   ground   of   want   of 

acknowledgment,    191SE-636. 
Receipt    of    payment    under    contract    with 

United    States    as    estopping    contractor 

to  claim  additional  compensation,  1918E- 

17. 
Right    of    bailee    to    denv    title    of    bailor, 

1918E-1201. 
See  also  Beneficial  Associatioks. 

EVICTION. 

See  Landlord  and  Tenant. 

EVIDENCE. 

Admissions  and  declarations:  admissibility 
and  conclusiveness  against  pleader,  in 
subsequent  action  with  stranger,  of  ad- 
mission in  pleading,  1918E-549 

— admissibility  of  declarations  of  testator 
upon  issue  of  revocation  of  will  which 
cannot  be  found.  193  8E-370. 


Admissions  and  declarations:  admissibility  of 
statement  of  fact  made  in  connection 
with  offer   of  compromise,   1918C-439. 

— declarations  or  written  statements  made  by 
insured  previous  to  death  as  evidence  of 
suicide,   1918C-1050. 

— failure  of  party  to  civil  action  to  reply  to 
oral  statement  as  implied  admission, 
1918C-9. 

— propriety  of  cautionary  instruction  rela- 
tive to  consideration  of  verbal  admis- 
sion,  19]8r)-298. 

Age:  recital  in  public  record  as  proof  of  age, 
1918E-266. 

Burden  of  proof:  burden  of  proof  as  to 
validity  of  subsequent  marriage,  1918E- 
1233. 

■—burden  of  proof  in  action  to  enjoin  execu- 
tion sale,  1918C-304. 

— burden  of  proof  of  existence  of  relation  of 
independent  contractor,  1918C-632. 

Dead  bodies:  evidence  admissible  to  estab- 
lish identity  of  dead  body,  1918C-697. 

Death  certificates:  physician's  death  certifi- 
cate as  evidence,  1918C-761. 

Dentists:  evidence  in  action  against  dentist 
for  injuries  to  patient,  1918C-1191, 

Depositions :  identification  of  exhibit  referred 
to  in  deposition,  1918E-282. 

Dying  declarations:  admissibility  of  dying 
declaration  on  behalf-  of  defendant, 
1918C-425. 

Intoxicating  liquors:  admissibility  of  evi- 
dence of  possession  of  federal  license  in 
prosecution  for  violation  of  liquor  law, 
1918D-775. 

Parol  evidence:  admissibility  of  parol  evi- 
dence to  show  that  subscription  to  stock 
was  conditional,  1938C-853. 

Presumptions :  facts  which  must  be  shown  in 
conjunction  with  absence  to  establish 
presumption  of  death,  1918D-758. 

— presumption  as  to  existence  of  relation  of 
independent  contractor,   1918C-632 

— presumption  as  to  validity  of  subsequent 
marriage,  1918E-1233. 

— validity-  of  provision  in  will  creating  pre- 
sumption with  respect  to  survivorship 
in  common  disaster,  1918D-842. 

Verdict :  affidavits  of  jurors  as  evidence  that 
verdict  returned  or  entered  differed  from 
verdict  actually  found,  1918E-287. 

Weight  and  sufficiency:  conclusiveness  of  li- 
cense registry  as  to  ownership  of  motor 
vehicle,    19]8E-737. 

■—weight  of  evidence  of  possession  of  federal 
license  in  prosecution  for  violation  of 
liquor  law,  1918D-775. 


EXCAVATIONS. 

Person  employed  in  connection  with  excavat- 
ing or  filling  as  independent  contractor, 
1918C-665. 


EXCEPTIONS. 

See  Statutes. 


248 


AJSJA^.  CAS  DIGEST  (1918C-1918E). 


EXCHANGE  OF  LAND. 

Meaning  of  "about"  in  contract  to  exchange 
land  when  used  with  reference  to  quan- 
tity, 1918D-704. 

Specific  performance  of  contract  to  exchange 
land,  1918D-717. 


EXCISE    COMMISSIONERS. 

What  is  "necessary  expense"  incurred  by 
board  of  excise  commissioners,  1918D- 
921. 


EXECUTIONS. 

Injunction    against    execution    sale,    I918C- 
162. 


EXECUTORS    AND    ADMINIS- 
TRATORS. 

Concealment  of  facts  as  affecting  running  of 
limitations  against  right  to  attack  dis- 
tribution of  decedent's  estate,  1918D- 
316 

Kight  of  personal  representative  to  enjoin 
execution  s^le,  1918C-260. 

What  constitutes  renunciation  of  trust  by  ex- 
ecutor or  testamentary  trustee,  1918D- 
459. 

What  is  "necessary  expense"  in  administering 
estate  of  decedent,  1918D-923. 

When  interest  is  chargeable  in  advancement 
in  distribution  of  ttstate  estate,  1918E- 
287. 

See  also  Res  Judicata;  Wills. 


EXISTENCE. 

See  Religious  Societies. 

EXONERATION. 

See   Streets   and  Highways. 

EXPIRATION  OF  CHARTER. 

Expiration  of  charter  as  ground  for  disso- 
lution of  corporation  at  instaiice  of 
minority   stockholder,   1918E-426. 

EXPLOSIONS  AND  EXPLOSIVES. 

Validity  of  ordinance  regulating  keeping  of 
gasolene  or  other  explosive  within  mu- 
nicipal   limits,    1918i^-146. 

EXTENSION  OF  TIME. 

See  Suretyship. 

EXTRADITION. 

Right  after  international  extradition  to  try 
prisoner  for  crime  not  designated  in  req- 
uisition, 1918D-1030. 

Who  is  fugitive  from  justice  witliin  purview 
of  interstate  extradition  laws,  191 8D- 
1011. 


EXEMPTIONS. 

Meaning  of  term  "necessary"  as  used  in  ex- 
emption statute,  1918D-173. 

Right  to  injunction  against  execution  sale  of 
exempt  property,  I918C-215. 

See  also  Taxation. 


EXERCISES. 

See  Schools. 

EXHAUSTING    LAND. 

Exhausting  land  as  waste,  1918D-543. 

EXHIBITIONS. 

See  CAB&iExts  OF  Goods;  Theatebs  aito 
Amusements. 


EXTRATERRITORIAL   OPERATION. 

See  Divorce  ;  Marriage. 

FAILURE  OF  PURPOSE. 

Failure  of  purpose  as  ground  for  dissolution 
of  corporation  at  instance  of  minority 
stockholder,  1918E-427. 

FAILURE   TO   REPLY. 

See  Admissions  and  Declarations. 

FALSE  PRETENSES. 

Construction  of  statute  prescribing  form  of 
indictment  for  false  pretenses,  1918C- 
668. 


EXHIBITS. 

Identification  of  exhibit  referred  to  in  de* 
position,  1W8E-282. 


FARES. 

See  Tickets  and  Fares. 


CUMULATIVE  INDEX  TO  NOTES. 


249 


fahms. 

Changing  park  into  farm  as  waste,  1918D-^ 
o43. 


FATHER. 

See  Pabexx  and  Child. 


FEDERAL  BOIIXR  INSPECTION  ACT. 

See  Master  and  Sebvaxt. 


Landlord  and  tenant:  construction  of  agree- 
ment by  lessee  to  insure  premises  against 
fire,  1918E-299. 


FIRES. 

Liability  of  licensee  in  possession  of  prop- 
erty for  damage  thereto  by  tire,  1918D- 
378. 

Liability  of  railroad  company  to  person 
other  than  passenger  for  personal  injury 
resulting  from  sparks  or  fire  set  by  en- 
gine, 1918E-815. 


FEDERAL  GOVERNMENT. 

See  Govern  iiENT. 

FEDERAL    LICENSES. 

See  Intoxicating  Liquobs. 

FEDERAL  STATUTES. 

See  Government;  Hours  of  Sebvioe  Acts; 
Interstate  Commerce;  TEaiEGBAPHS  and 
Telephones. 

FEES. 

See  Licenses. 

FERRIES. 

Liability  of  owner  of  ferry  to  passengers, 
1918E-1083. 


FIRE  INSURANCE. 

Cancellation  of  policy:  when  cancellation  of 
fire  insurance  policy  at  instance  of  in- 
sured becomes  efi'ective,  1918C-120. 

Construction  of  policy:  fire  insurance  policy 
as  covering  profits,   1918E-10.51. 

— giving  of  cliattel  mortgage  as  as^ignment 
or  change  of  interest  of  insured  Avithin 
prohibition  in  fire  insurance  policy, 
1918r)-862. 

— necessity  of  exact  compliance  with  iron- 
safe  clause  in  insurance  policy,  1918E- 
387. 

— ^possession  of  equitable  title  only  as  satis- 
fying requirement  in  fire  insurance  policy 
of  sole  and  unconditional  ownership  by 
insured,  1918C-136. 

— vendee  under  executory  contract  of  pur- 
chase as  sole  and  unconditional  owner  of 
property  under  fire  insurance  policy, 
1918C-i43. 

— ^what  constitutes  "keeping,"  "storing,"  "us- 
ing," etc.,  of  prohibited  articles  within 
fire  insurance  policy,  1918D-294. 


FISH   AND   GAME. 

Fisherman  as  independent  contractor,  1918C- 
656. 


FIXTURES. 

Eight  to  injxmction  against  execution  sale  of 
fixtures,  1918C-214. 


FLOODING  LAND. 

Flooding  land  as  waste,  1918D-543. 

FOOD  AND  DRUGS. 

Cold  storage  of  food,   19180-896. 

FOREIGN  GOVERNMENTS. 

See  INTEBNAXIONAL  LaW, 

FORFEITURES. 

See  Beneficial  Associations. 

FORGERY. 

Necessity  that  justification  of  charge  of  for- 
gery be  justification  of  precise  cliarge, 
191*80-1136. 

FRATERNITIES. 

See  Schools. 

FRAUD.  * 

Corporations:  fraud  as  ground  for  dissolu- 
tion of  corporation  at  instance  of  minor- 
ity stockholder,   1918E-430. 

Executors  and  administrators:  concealment 
of  facts  as  aflfecting  running  of  limita- 
tions against  right  to  attack  distribu- 
tion of  decedent's  estate,  1918D-316. 


250 


.ANN.  CAS  DIGEST  (1918C-1918Ej. 


Judgments:  right  to  enjoin  execution  sale 
under  judgment  obtained  by  fraud, 
1918C-244. 

Master  and  servant:  fraud  of  servant  as  de- 
fense or  set-oflf  in  action  for  wages, 
1918D-79. 

Partnership:  fraud  as  affecting  running  of 
statute  of  limitations  against  action  be- 
tween partners  for  accounting  and  settle- 
ment after  dissolution,  1918I)-1117. 

Trusts  and  trustees:  setting  aside  trust  dur- 
ing life  of  creator  for  fraud,  1918C-836. 

Voting  contests:  fraud  in  voting  or  guessing 
contest,  1918C-750. 

Weights  and  measures:  validity  of  legisla- 
tion for  prevention  of  fraud  in  weights 
and  measures,  1918D-156. 

See  also  Misbefiibs]!:ntations. 


FRAUDS,  STATUTE  OF. 

Construction  of   provision   of  uniform  sales 

act    requiring    written    memorandum   of 

contract  of  sale,  1918D-412. 
Contract   for  joint  purchase  of  goods  from 

third  person  as  within  statute  of  frauds, 

1918C-744. 
Necessity  that  abandonment  or  rescission  of 

written  contract  for  sale  of  goods  be  in 

writing,  1918C-1213. 
Right  of  purchaser  to  recover  money   paid 

under  verbal  contract  for  sale  of  land, 

1918C-432. 
Validity  and  enforceability  of  parol  contract 

partly  within  statute  of  frauds,  1918E- 

498. 


GAMING. 

From  whom  recovery  may  be  had  of  money 
lost  in  gaming,  1918E-138. 

Set-off  of  prior  wimiings  in  action  to  re- 
cover money  lost  at  gaming,  1918C-771. 


GARBAGE. 

Person  employed  in  connection  with  garbage 
collection  as  independent  contractor, 
1918C-656. 


GARDENS. 

Changing    meadow    into    garden    as    waste, 
1918I>-543. 


GARNISHMENT. 

Effect  of  payment  of  judgment  by  garnishee 
on  liability  to  principal  defendant  in 
another  jurisdiction,  19180-829 


GAS. 

See  Mines  and  Minerals. 

GASOLENE. 

Validity  of  ordinance  regulating  -keeping  of 
gasolene  within  municipal  limits,  1918E- 
145. 


FRAUDULENT  SALES  AND  CONVEY- 
ANCES. 

Transfer  to  creditor  in  payment  of  or  as 
security  for  sum  greater  than  is  actual- 
ly due  as  rendering  transaction  fraudu- 
lent, 1918E-713. 


FREIGHT  DUE. 

Legal  meaning  of  "freight  due,"  1918E-789. 

FRONT  FOOT  RULE. 

See  Taxation. 


GOOD  HEALTH. 

See  Insurance. 

GOVERNMENT. 

Validity  and  construction  of  statute  limiting 
amount  of  attorney's  fee  for  collection 
of  claim  against  federal  government, 
1918C-863. 

GRADUATING   EXERCISES. 

See  Schools. 


FUGITIVE  FROM  JUSTICE. 

See  Extradition. 


GRANDCHILDREN. 

See  Infants. 


FURNITURE. 

See  HousEnoLD  Fubnltubb. 


GRAND  JURT. 

Report  of  grand  jurv  as  privileged  within 
law  of  libel,  1918E-1196. 


CUMULATIVE  IjS'DEX  TO  :N'0TES. 

GROW  DUE.  HIGmVAYS. 

Legal  meaning  of  "grow  due,"  1918E-789.  See    Steeets    and    Highways. 


251 


GUARANTY. 

Distinction   between   continuing  and  limited 
guaranties,  1918E-609. 


GUARDIANS. 

Wliat  is  "necessary  expense"  in  administer- 
ing estate  under  guardianship,  1918D- 
921. 


GUESTS. 

See  Innkeepebs. 

HABITS. 

Waiver  of  forfeiture  of  benefit  certificate  for 
misrepresentation  as  to  habits,  1918D- 
306. 

HAULING. 

Person  employed  in  connection  with  trucking 
or  hauling  as  independent  contractor, 
1918C-658. 

HAW^KERS  AND  PEDDLERS. 

Validity  of  license  tax  or  fee  imposed  on 
hawker  or  peddler  as  regards  uniformity, 
1918E-109. 

HAY. 

Bee  Agbiclttube, 

HEALTH. 

Waiver  of  forfeiture  of  benefit  certificate  for 
misrepresentation  as  to  iiealth,  1918D- 
306. 

HEALTH  INSURANCE. 

Meaning  of  term  "confined  to  house"  or  sim- 
ilar phrase  in  accident  or  health  insur- 
ance policy,   1918C'-.")ol. 


HOMESTEAD. 

Person    acquiring    homestead    as    purchaser 

pendente  lite,  1918C-6. 
Right  to  injimction  against  execution  sale  of 

homestead,  1918C-215. 


HOMICIDE. 

Admissibility  of  dving  declaration  on  behalf 

of  defendant,  "1918C-425. 
Construction  of  statute  prescribing  form  o.f 

indictment  for  homicide,  1918C-558. 


HOSPITALS. 

Liability  of  municipality  for  negligence  in 
respect  to  condition  of  or  performance 
of  services  incident  to  hospital,  1918D- 
803. 


HOURS  OF  LABOR. 

See  Labor  Laws. 

HOURS  OF  SERVICE  ACTS. 

Construction  of  Federal  Hours  of  Service  Act, 
1918C-797. 

HOUSEHOLD    FURNITURE. 

Meaning  of  "necessary"  household  furniture 
as  used  in  exemption  statute,  1918D-174. 

HOUSES. 

"Village"  as  meaning  assemblage  of  houses, 
1918D-259. 

HUMILIATION. 

See  Damages. 

HUNTING. 

See  Weapons. 


HEATING    PREMISES. 

See  Landlord  and  Teinant, 


HEIRS. 

Right  of  heir  to  enjoin  execution  sale,  19180- 
260. 


HUSBAND    AND    IVIFE. 

Actions:  right  of  one  spouse  to  maintain 
civil  action  at  law  against  the  other, 
1918C-777. 

— right  of  wife,  in  absence  of  statute,  to  main- 
tain action  for  injurv  to  or  loss  of  con- 
tcrtium,  1918D-208.' 


252 


A^*N.  CAS  DIGEST  (1918C-1918E). 


Admissions  and  declarations:  statement  by 
spouse,  mn.(]c  in  presence  of  and  not 
denied  by  other  spouse,  as  implied  ad- 
mission, 1918C-34. 

Community  property:  injunction  against  ex- 
ecution sale  of  community  property, 
1918C-152. 

— purchaser  of  community  property  as  bona 
lide  purchaser,  1918C-469. 

Entirety:  injunction  against  execution  sale 
of  property  held  by  entireties,  1918C- 
152. 

Purchasers  pendente  lite:  person  acquiring 
interest  through  marriage  as  purchaser 
pendente  lite,  J918C-53. 

Separate  property  of  wife :  injunction  against 
execution  sale  of  property  of  wife,  1918C- 
152. 

— rights  of  parties  under  deed  or  contract 
bv  married  woman  invalid  for  defective 
acknowledgment,    1918E-648. 

— rights  of  parties  under  deed  or  contract  by 
married  woman  invalid  for  want  of  ac- 
knowledgment, 1918E-631. 

Witnesses:  effect  of  divorce  on  competency  of 
husband  or  wife  as  witness,  1918E-193. 

See  also  Divoece;  Marbiage. 


"Endless  chain:"  A-aliditv  >}{  "endless  chain" 
contract,  1918D-476' 

Insurance:  agreement  between  insured  and 
insurer  discriminating  in  favor  of  former 
as  against  other  policy  holders  19181)- 
504. 

— validity  of  provision  in  employers'  liability 
insurance  contract  giving  insurer  con- 
trol of  settlement,  1918C-405. 

Interest:  validity  of  contract  provision  as  to 
interest  other  than  provision  fixing  usuri- 
ous rate,  1918E-747. 

Intoxication:  contract  entered  into  by  intoxi- 
cated person  as  void  or  voidable,  1918E- 
330. 

Tenents  in  common:  validity  of  conveyance 
of  specific  right  or  easement  in  land  by 
one  tenant  in  common,  1918C-92. 

Wills:  validity  and  enforceability  of  agree- 
ment by  parties  interested  to  dispense 
wah  probate  of  Avill,   1918E-1218. 

See  also  FbatJds,  Statute  of;  Mabbiage. 


ILLUSTRATION. 

See  IxsuRAXCE. 


IDEM    SONANS. 

See  Names. 


IMPEACHMENT. 

See   Abbiteatiox    a^d    Awabd;    IIe31ese£S; 

Statutes. 


IDENTIFICATION. 

See  Exhibits. 


IMPLEMENTS. 

See  Tools. 


T   ,  IDENTITY. 

See  Bead   Bodies;    Kes   Judicata. 


IMPLIED   ADMISSIONS. 

See  Admissions  and  Declarations. 


ILLEGAL  ACTS. 

Illegal  acts  as  ground  for  dissolution  of 
corporation  at  instance  of  minority  stock- 
holder, 1918E-430. 


ILLEGAL    CONTRACTS. 

Acknowledgment:  rights  of  parties  under 
deed  or  contract  by  married  woman  in- 
valid for  defective  acknowledgment, 
1918E-648. 

— rights  of  parties  under  deed  or  contract  by 
married  woman  invalid  for  want  of  ac- 
knowledgment,  1918E-631. 

"Bohemian  oats:"  validity  of  "Bohemian 
oats"  contract,  1918D-476. 

Carriers  of  goods:  validity  and  enforcement 
of  contract  by  carrier  to  carry  goods  at 
discriminating  rate  fixed  bv  mistake, 
1918E-458. 

Corporations:  validity  of  agreement  by  seller 
of  corporate  stock  to  repurchase  on  de- 
mand, 1918D-744. 

Divorce:  validity  of  contract  intended  to  fa- 
cilitate procuring  of  divorce  1918E-902. 


IMPLIED  CONTRACTS. 

What  constitutes  implied  contract  to  pay 
broker  for  sale,  lease  or  mortgage  of  real 
estate,  1918C-1064. 


IMPLIED  TRUSTS. 

See  Tbusts  Am)  Tbxjstees. 


IMPROVEMENTS. 

Right  of  lessee  to  enforce  covenant  to  pay 
for  improvements  or  repairs  against  suc- 
cessor of  reversion,  1918D-1180. 

See  also  Public  Improvements. 


INCOME. 

See  Tbtsts  and  TBUSTEaas. 


CUMULATIVE  INDEX  TO  XOTES. 


253 


INCORPORATED  VILLAGES. 

"Village"    as    meaning    incorporated  village, 
1918D-262. 


INCUMBRANCES. 

See  Covenants. 

INDEMNITY. 

See  Lost  Instbuments. 

INDEPENDENT  CONTRACTORS. 

Who  is  an  independent  contractor,  1918C- 
G27. 

INDIANS. 

Common-law  marriages  between  Indians, 
1918E-380. 

Validity  and  construction  of  statute  limiting 
amount  of  attorney's  fee  for  collection 
of  Indian  depredation  claim  against  fed- 
eral government,  1918C-869. 

d  T  *".  i 
INDICTMENT. 

6ee  Criminal  Law. 

INDIGNITIES.  W.n^Tr 

See   iNNKEEPeUS. 

INDIVIDUAL  CAPACITY. 

See  Res  Judicata. 


INJUNCTIONS. 

Duty  of  injured  party  to  minimize  damages 

resulting    from    improper    suing    out    of 

injunction,    1918C-673. 
Entry  of  summary  judgment  against  surety 

on  injunction  bond,   1918C-97. 
Injunction  against  execution  sale,  1918C-152. 
Power  of  courts  of  equity  to  enjoin  elections, 

1918E-1153. 


INJURY  TO  LAND. 

See  Eminent  Domain. 

INNKEEPERS. 

Liability  of  carrier  as  innkeeper  for  larceny 
from  or  robberv  of  passenger  by  stranger, 
1918E-589. 

Liability  of  innkeeper  for  insult  or  indignity 
to  guest,  1918E-255. 

INNOCENCE. 

Presumption  of  innocence  on  issue  of  valid- 
ity of  subsequent  marriage,  1918EI-1234. 

INSANITY. 

See  Libel  and  Slander. 

INSOLVENCY. 

Insolvency  as  ground  for  dissolution  of  cor- 
poration at  instance  of  minority  stock- 
holder,  1918E-427. 


INFANTS. 

Term  "child"  or  '"children"  in  statute  as  in- 
cluding grandchild  or  grandchildren, 
1918E-1004. 

See  also  Death  by  Wrongful  Act;  Pabent 
AND  Child; 


INFORMATION. 

See   Criminal   Law. 

INITIATIVE  AND  REFERENDUM. 

Constitutionality  of  initiative  and  referendum 
provisions  either  in  state  constitutions 
or  municipal  charters,  1918D-604. 

Validity  of  ste,tute,  other  than  local  option 
law.  which  takes  effect  only  iipon  rati- 
fication  hv   voters.    1918E-573. 


INSPECTION   OF   BOILERS. 

See  Master  and  Servant. 

INSTRUCTIONS. 

Propriety  of  cautionary  instruction  relative 
to  consideration  of  verbal  admission, 
1918D-298. 

INSUFFICIENCY  OF  EARNINGS. 

Insufficiency  of  earnings  as  ground  for  dis- 
solution of  corporation  at  instance  of 
minority  stockholder,  1918E-^26. 

INSULTS. 

See  iNNKEEPiats. 


254 


ANX.  CAS  DIGEST  (1918C-1918E). 


INSURANCE. 

Accident  insurance:  construction  of  "total 
disability"  clause  in  accident  insurance 
policy,  1918C-113. 

■ — meaning  of  term  "'confined  to  house"  or  sim- 
ilar phrase  in  accident  insurance  policy, 
1918C-531. 

Agents:  liability  of  agent  to  insurance  com- 
pany for  failure  to  cancel  or  reduce  pol- 
icy as  directed,  1918C-1043. 

Benefit  insurance:  construction  of  representa- 
tion tliat  person  applying  for  reinstate- 
ment of  insurance  is  "in  good  health," 
1918D-1005, 

— recourse  to  courts  by  members  of  benevo- 
lent, beneficial  and  similar  associations 
to  protect  property  rights,  1918E-1178. 

— waiver  of,  or  estoppel  to  deny,  forfeiture 
of  benefit  certificate  for  violation  of  con- 
tract of  insurance  other  than  failure 
to  pay  assessments  or  dues,  1918D-305. 

Contract  of  insurance:  advertisement,  illus- 
tration, or  the  like,  as  part  of  insurance 
contract,  1918E-889. 

— agreement  between  insured  and  insurer  dis- 
criminating in  favor  of  former  as  against 
other  policyholders,  1918D-504. 

Employers'  liability  insurance:  effect  of  bind- 
ing slip  or  receipt  as  employers'  liability 
insurance  contract,  1918C-375. 

— validity  and  construction  of  provision  in 
employers'  liability  insurance  contract 
giving  insurer  control  of  settlement, 
1918C-405. 

Fire  insurance:  construction  of  agreement  by 
lessee  to  insure  premises  against  fire, 
1918E-299. 

— fire  insurance  policy  as  covering  profits, 
1918E-1051. 

— giving  of  chattel  mortgage  as  assignment 
^  or  change  of  interest  of  insured  within 
prohibition  in  fire  insurance  policy, 
1918D-862. 

— meaning  of  term  "contiguous"  as  used  in 
fire  insurance  policy,  1918E-800. 

— meaning  of  term  "machinery"  as  used  in 
fire  insurance  policy,  1918E-209. 

— necessity  of  exact  compliance  with  iron- 
safe  clause  in  insurance  policy,  1918E- 
387. 

— possession  of  equitable  title  only  as  satis- 
fying requirement  in  fire  insurance  pol- 
icy of  sole  and  unconditional  ownership 
by  insured,   1918C-136. 

— vendee  under  executory  contract  of  pur- 
chase as  sole  and  unconditional  owner 
of  property  under  fire  insurance  policy, 
1918C-143. 

— what  constitutes  "keeping."  "storing," 
"using,"  etc.,  of  prohibited  articles 
within  fire  insurance  policy,  1918D-294. 

— when  cancellation  of  fire  insurance  policy 
at  instance  of  insured  becomes  effective, 
1918C-120. 

Health  insurance:  meaning  of  term  "con- 
fined to  house"  or  similar  phrase  in 
health  insurance  policy,  1918C-531. 


Life  insurance:  construction  of  representa- 
tion that  person  applying  for  reinstate- 
ment of  insurance  is  "in  good  health," 
1918D-1005. 

— declarations  or  written  statements  made 
by  insured  previous  to  death  as  evidence 
of  suicide,   1918C-1050. 

— physician's  death  certificate  as  evidence 
in  action  on  life  insurance  policy,  1918C- 
761. 

— rights  and  liabilities  of  alien  enemy  with 
respect  to  life  insurance  contract,  1918C- 
714. 

Statutory  regulation:  validity  of  statute 
delegating  to  officer  or  board  regulation 
of  insurance  companies,  1918E-479. 


INTEREST. 

Liability  of  public  officer  for  interest  received 

on  public  funds,  ]918E-105. 
Validity  of  contract  provision  as  to  interest 

other  than  provision  fixing  usurious  rate, 

1918E-747. 
When  interest  is  chargeable  on  advancement 
in   distribution   of   testate   estate,    1918E- 

212. 


INTERMEDIATE  COURTS. 

See  Appeal  and  Ebbob. 

INTERNATIONAL  EXTRADITION. 

See    EXTBADITION. 

INTERNATIONAL  LAW. 

Jurisdiction  of  court  of  action  against  for- 
eign sovereign  or  foreign  state,  191 8E- 
627. 

INTERSTATE  COMMERCE. 

Effect  on  state  statute  or  rule  of  federal  as- 
sumption of  control  of  telegraph  comnan- 
ies,  1918C-1033. 

Eeports  to  interstate  commerce  conimis  ion 
under  federal  hours  of  service  act, 
1918C-813. 

State  statutes  penalizing  negligent  handling 
of  telegrams  as  regulation  of  interstate 
commerce,   1918C-1039. 

Validity  and  enforcement  of  contract  by  car- 
rier to  carry  goods  at  discriminating 
rate  fixed  by  mistake,  1018E-4.58. 

INTERSTATE  EXTRADITION. 

See    EXTRADITI03T. 


r 


CUMULATI\^  INDEX  TO  NOTES. 


255 


INTOXICATING  LIQUORS. 


Construction  of  statute  prescribing  form  of 
indictment  for  unla\A"ful  sale  of  intoxi- 
cating liquors,  1918C-560. 

Construction  of  statute  regulating  sale  of 
liquor  on  prescription  of  physician, 
1918E-915. 

Possession  of  federal  license  as  evidence  of 
violation  of  liquor  law,  1918D-775. 

Right  to  rent  as  affected  by  landlord's 
knowledge  that  premises  are  to  be  used 
for  illegal  sale  of  liquor,  1918C-442. 

See  also  Local  Optio:n. 


INTOXICATION. 


See  Dbuxke.xness. 


INVOICE    VALUE. 


Meaning   of   "invoice   value," 
or  the  like,  1918E-541. 


'invoice  cost" 


IRON-SAFE    CLAUSE. 

See  Fire  Ixsvrascb. 


IRRIGATION. 

Power  of  United  States  to  condemn  land  for 
irrigation  purposes,  1918E-48. 


JANITORS. 

Person  employed  as   janitor  as  independent 
contractor,  19180-656. 


JOINDER   OF  PARTIES. 

See  Parties  to  Actions. 

JOINT    PURCHASE. 

See  FRAtDS,  Statute  of. 

JOINT  TORTFEASORS. 

See  Eelease  and  Discharge. 

JOURNALS. 

See  Statutes. 

JUDGES. 


"Judge"  as   including  justice  of  the  peace, 
ini8D-990. 


JUDGMENTS. 


Executions:  injunction  against  execution 
sale,   1918C-152. 

Purchasers  pendente  lite:  judgment  creditor 
as  purchaser  pendente  lite,  1918C-64. 

Res  judicata:  judgment  in  action  by  or 
against  individual  as  res  judicata  in 
action  by  same  person  in  representative 
capacity,  1918E-1103. 

— judgment  in  action  by  or  against  repre- 
sentative, as  res  judicata  in  action  by 
same  person  individually,  1918E-1096. 

— ^judgment  or  settlement  in  bastardy  pro- 
ceeding as  barring  right  of  action  for 
damages  for  seduction,  1918D-669. 

Summary  judgment:  entry  of  summary  judg- 
ment against  surety  on  bond  in  nature  of 
appeal  bond,  1918C-1151. 

— entry  of  summary  judgment  against  sure- 
ty on  injunction  bond,  19180-97. 

Bee  also  Executors  and  Administbatobs  ; 
Garnishment;  Partnership. 


JUDICIAL    PROCEEDINGS. 

See  Libel  and  Slandeb. 


JUDICIAL   SALES. 

Injunction  against  execution  sale,  19180- 
152. 

Parol  agreement  made  with  person  interested 
in  land,  that  promisor  will  buy  land  at 
judicial  sale  and  hold  for  benefit  of 
promisee,  as  implied  trust  enforceable 
in  equity,  1918E-309, 

Purchaser  at  judicial  sale  as  purchaser 
pendente  lite,  19180-66. 


JURISDICTION. 

See  Courts. 


JURY. 

Disclosure  by  juror  before  verdict  of  facts 
respecting  verdict  or  state  of  delibera- 
tions as  prejudicial  error,  1918E-668. 

See  also  Grand  Jury;  Verdict. 


JUSTICES   OF  THE   PEACE. 

"Judge"   as   including   justice   of  the   peace,. 
1918D-990. 


JUSTIFICATION. 

See  Libel  and  Slandeb. 

JUSTLY   DUE. 

Legal  meaning  of  "justly  due,"  1918E-789. 


256 


ANN.  CAS  DIGEST  (1918C-1918E). 


KEEPING    PROHIBITED    ARTICLES. 

See  FiBB  Insuka^'CE. 

KNOWLEDGE. 

See  Landlotd  and  Tenant. 

LABOR    COMBINATIONS. 

Legality  of  picketing,  1918E-54. 
Validity  of  rule  of  labor  union  as  affecting 
third  person,  1918D-653. 

LABOR  LAW^S. 

Construx!tion  of  federal  hours  of  servica 
act,  1918C-797. 

Construction  of  federal  railroad  boiler  in- 
spection act,  1918C-584. 

Laborers  or  employees  within  purview  of 
statute  limiting  hours  of  labor.  1918C- 
338. 

Validity  of  statute  fixing  minimum  wage  rate 
for  private  employment,  1918D-465. 

What  constitutes  "manufacturing"  establish- 
ment within  statute  regulating  hours  of 
labor,  1918D-685. 


Repairs  and  improvemeutri :  right  of  lessee 
to  enforce  covenant  to  pay  for  improve- 
ments or  repairs  against  successor  of 
reversion,  1918D-1180. 

See  also  Bbokees. 


LARCENY. 

Necessity  that  justihcation  of  charge  of 
larceny  be  juatification  of  precise  charge, 
1918C-1139. 

See  also  Cabbiees  of  Passexgebs. 


LAVATORIES. 

Construction  of  public  lavatory  in  street  as 
constituting  nuisance  or  as  entitling 
abutting  owner  to  compensation,  1918D- 
906. 


LEASES. 

See  Landlord  and  Tenant. 

LEGALLY  DUE. 

Legal   meaning   of   "legally   due,"    1918G- 
789. 


LACHES 

Laches  as  affecting  right  of  minority  stock- 
holder to  dissolve  corporation,  1918E- 
431. 

See  also  Mobtgages. 


LEGATEES. 

Right   of   legatee   to   enjoin   execution    sale, 

1918C-260. 
See  also  Equitable  Election. 


LAND. 

See  Waste. 


LEGISLATIVE    JOURNALS. 

See  Statutes. 


LANDLORD   AND    TENANT. 

Eviction:  failure  of  landlord  to  heat  prem- 
ises according  to  contract  as  constructive 
eviction  of  tenant.  1918D-394. 

Executions:  right  of  lessor  or  lessee  to  en- 
join execution  sale,  1918C-152- 

Insurance:  construction  of  agreement  by 
lessee  to  insure  premises  against  fire, 
r918E-299. 

Intoxicating  liquors:  rights  of  landlord  and 
tenant  inter  se  under  lease  of  premises 
for  saloon  purposes  where  tenant  is  sub- 
sequently unable  to  use  premises  for 
that  purpose,  1918D-1145. 

— right  to  rent  as  affected  by  landlord's 
knowledge  that  premises  are  to  be  used 
for  illegal  sale  of  liquor,  1918C-442. 

Leases:  necessitv  for  acknowledgment  of 
lease,  1918D-161. 

Purchasers  pendente  lite:  lessor  or  lessee  as 
purchaser  pendente  lite,  1918C-60. 


LEVELING   LAND. 

Changing  level  of  land  as  waste,  1918D-543. 

LIBEL    AND    SLANDER. 

Actionable  words:  imputation  of  insanity  as 
actionable.  1918E-101. 

— utterance  of  clergyman  or  other  representa- 
tive of  religious  organization  f  other 
than  statement  from  pulpit)  as  action- 
able, 1918C-7S0. 

Defenses:  necessitv  that  justification  of  libel 
or  slander  be  as  broad  as  charge,  1918C- 
1088. 

— necessity  that  justification  of  libel  or 
slander  be  justiflcation  of  precise  charge, 
19180-1131. 

■ — truth  alone  as  complete  defense  in  civil 
action  for  libel,  1918C-335. 


CUMULATIVE  INDEX  TO  NOTES. 


257 


Privileged  commTinications :  report  of  grand 
jury  as  privileged  within  law  of  libel, 
1918E-1196. 

— ^what  proceedings  are  within  rule  of  privi- 
lege with  respect  to  report  of  judicial 
proceedings,  1918C-1196. 


UBRARIES. 

Condemnation    of    land    for    public    library, 
1918E-122. 


I.ICENSE. 

Effect  of  license  on  riglit  of  alien  enemy  to 

sue,  1918C-720. 
Liability  of  licensee  in   possession  of  prop- 

ertv  for  damage  thereto  by  fire,  1918I>- 

878. 


UCENSES. 

See  AtJTOMOBrLEs ;  Hawkers  atd  Feddl^is; 
Intoxicating  LiQtroRS. 


LIENS. 

Lienor  as  purchaser  pendente  lite.  1918C-62. 
Meaninir    of     "machinery"     in    lien    statute 

1918E-209. 
See    also   Mechanics'    Liens;    Stock    aito 

Stockholdebs. 


IJFE  INSURANCE. 

Construction   of   representation    that   person 

applying  for  reinstatement  of  insurance 

is  "in  good  health,"  1918D-1005. 
Declarations  or  written  statements  made  by 

insured  previous  t^  death  as  evidence  of 

suicide,  1918C-1050. 
Physician's   death    certificate   as   evidence   in 

action  on   life  insurance  policy,   1918C— 

761. 
Eights   and   liabilities   of   alien   enemy   with 

respect  to  life  insurance  contract,  19180- 

714. 


LIFE  TENANTS. 


Right  of  life  tenant  to  enjoin  execution  sale, 
1918C-267. 


Running    of    statute    of    limitations    against 

action   between   partners   for  accounting 

and  settlement  after  dissolution,  1918D- 

1107. 
Running    of    statute   of    limitations    against 

contribution    between    sureties,    1918E- 

518. 
Running   of    statute    of    limitations    against 

right  to  have  deed  declared  mortgage, 

1918C-756. 


LIMITED  GUARANTY. 

See    GUABAKTY. 

LIS   PENDENS. 

Who  18  purchaser  pendente  lite,  1918C-53. 


LOAN   BROKERS. 

See  Brokers. 


LOCAL  OPTION. 

n  "^filvon;  >;f 

Constitutionality  of  local  option  laws,  1918E- 
874. 


LOGS   AND   LUMBER. 

Person  employed  in  connection  with  logging 
or  lumbering  as  independent  contractor,  * 
1918C-656. 


LOOK  AND  LISTEN. 

See  Railroads. 

LOSSES. 

See  Gaming. 

LOST  INSTRUMENTS. 

Giving  of  indemnity  as  prerequisite  to  Te- 
coverv  of  amount  of  lost  negotiable  in- 
strument, 1918C-925. 

Right  of  stockholder  to  compel  duplication 
of  lost  certificate,  1918E-66. 


LIMITATION  OF  ACTIONS. 

Concealment  of  facts  as  affecting  running  of 
limitations  against  right  to  attack  dis- 
tribution of  decedent's  estate.  1918D-316. 

Limitation  of  action  to  recover  additional 
compensation  imder  contract  with  Unit- 
ed  States,  1918E-20. 

Ann.  Caa.  Dig.  1918C-E.— 17. 


LOTTERIES. 


See  Fbaxh). 


MACHINERY. 


Meaning  of  "maehinery,"  1918E-202. 


358 


ANN.  CAS  DIGEST  (1918C-1918E). 


MAINTENANCE. 
See  SuPPOBT  and  Maintenanob, 

MAIN    TRACK. 

Meaning  of  "main  track,"  1918E-242. 


MANDAMUS. 

Who  may  join  as  relator*  in  mandamus  pro» 
ceeding,  1918C-873. 


MANXTFACTUBING. 

Person  employed  in  connection  with  manu- 
facturino;  as  independent  contractor, 
1918C-656. 

What  constitutes  "manufacturing"  establish- 
ment within  statute  regulating  hours  of 
labor,  1918D-685. 


MANURE. 


Removing  manure  as  waste,  1918D-543. 


MARRIAGE 

Common— law  marriages  between  Indians, 
1918E-380. 

Fact  that  woman  contracts  marriage  with 
intent  not  to  assume  marital  relation  as 
ground  for  annulment,  1918E-191. 

Person  acquiring  interest  through  marriage 
eus  purchaser  pendente  lite,  1918C-68. 

Presumption  and  burden  of  pro»f  as  to  va- 
lidity of  subsequent  marriage,  1918E- 
1233. 

Validity  of  contract  made  to  induce  mar- 
,  riage    between    third    persons,    1918C- 

820. 

See  also  Divobob. 


What  may  be  shown  as  defense  or  set-off  in 

action  for  wages,  1918D-79. 
See  also  Electbicixy;  Employebs'  Liabiuty 

Insubance;  Independknt  Contbactobs; 

Labob     Combinatioks;     Labob     Laws  J 

Tips, 


MATERIALMEN. 

See  Building  Contkacts, 

MEADOW  LANDS. 

Changing  meadow  into  arable  land  as  waste, 

1918D-543. 
Changing    meadow    into    building    land    as 

waste,  1918D-543. 
Changing    meadow    into    garden    as    waste, 

1918D-543. 
Changing    meadow    into    orchard    as    waste, 

1918D-543. 
Changing     meadow     into     pasture    land     as 

waste,  1918D-543. 
Digging   drains   or    trenches   in   meadow   as 

waste,  1918D-543. 

MECHANICS'    LIENS. 

Loan  of  money  to  contractor  as  giving  right 
to  mechanic's  lien  or  to  recovery  on  con- 
tractor's bond,  1918I>-350. 

Priority  as  between  mechanic's  lien  elaim- 
ant  and  assignee  of  amount  due  contrac- 
tor, 1918C-1081. 

Right  of  holder  of  mechanic's  lien  to  en- 
join execution  sale,  1918C-276. 


MEMORANDUM. 

See  Feauds,  Statute  of. 

METHOD  OF  TRANSPOBO^ATION. 


MARRIED   W^OMEN. 

See  Husband  and  Wife. 

MASONIC    LODGES. 

Masonic  Lodge  or  body  as  charitable  insti- 
tution, 1918E-1043. 

MASTER   AND    SERVANT. 

Meaning  of  "machinery"  with  respect  to  duty 
of  employer,  1918E-204. 

Nftglect  of  statutory  duty  by  employer  as 
permitting  action  by  employee  for  per- 
sonal injuries  notwithstanding  work- 
men's compensation  act,  1918D-334. 

Time  as  essence  of  contract  to  enter  employ- 

I         ment  of  another,  1918D-756. 


See  Cabbiebs  of  Goods;   Cabbiebs  of  Live 
Stock. 


MILEAGE. 

See  PuBUO  Officeks. 


MILITIA. 

See  Abmy  and  Navt. 


MINES    AND    MINERALS. 

Assignee  of  contract  to  convey  mineral  rights 
as  bona  fide  purchaser,  1918C-468. 

Person  employed  in  connection  with  mine  or 
quarry  as  independent  contractor,  1918C- 
656. 


r 


CUMULATIVE  INDEX  TO  NOTES. 


259 


Withdrawal  from  settlement  of  public  lands 
occupied  for  oil  or  gas  exploration, 
1918C-1009. 


MONEY   DUE. 


Legal  meaning  of  "money  due,"  1918E-790. 


MINIMIZING    DAMAGES. 

See  Injunotions. 

MINIMUM  WAGE  RATE. 

See  Labob  Laws. 

MINISTERIAIi    OFFICERS. 

See  PuBLio  Qbticebs. 

MINORITY   STOCKHOLDERS. 

See  Stock  and  Stockholdebs. 

MISCONDUCT  OF  COUNSEI- 

Challenging  opponent  to  waive  legal  rights 
as  misconduct  of  counsel,  1918C-382. 


MONEY  HAD  AND  RECEIVED. 

Bight  of  action  for  money  had  and  received 
against  person  procuring  payment  of 
money  with  knowledge  that  it  is  due 
to  another,  1918D-245. 


MORTGAGES. 

Assignment:  rights  of  assignee  of  mortgage 
as  against  prior  equities,  1918C-479. 

Deed  as  mortgage:  effect  of  lapse  of  time  on 
right  to  have  deed  declared  mortgage, 
1918C-755. 

Executions:  right  of  mortgagee  or  mortgagor 
to  enjoin  execution  sale,  1918C-271. 

Power  of  sale  in  trust  deed  or  mortgage  as 
power  coupled  with  interest,  1918E-1021. 

Purchasers  pendente  lite:  mortgagee  as  pur- 
chaser pendente  lite,  1918C-61. 

Reformation :  right  to  reform  description  in 
deed  or  mortgage  as  against  purchaser 
without  notice,  1918D-147. 

See  also  Brokkrs;  Vendor  and  Pubchaseb. 


MISFEASANCE. 

See  Aqenoz. 


MORTIFICATION. 

See  Daicages. 


MISMANAGEMENT. 

Mismanagement  as  ground  for  dissolution  of 
corporation  at  instance  of  minority  stock- 
holder, 1918E-429. 


MISNOMER. 

See  Taxation. 

MISREPRESENTATIONS. 

Waiver  of  forfeiture  of  benefit  certificate 
for  misrepresentation  in  application, 
1918D-305. 

MISTAKE. 

Mistake  as  affecting  running  of  statute  of 
limitations  against  action  between  part- 
ners for  accounting  and  settlement  after 
dissolution,    1918D-1107. 

See  also  ATtBiTKATioN  and  Award;  Cabriess 
OF  Goods;  Eefebbes. 

MODIFICATION. 

See  Contracts. 


MOTOR   VEHICUBS. 

See  Automobiles. 

MTTNICIPAI.    CORPORATIONS. 

Buildings:  liability  of  municipality  for  un- 
safe condition  of  building  maintained 
for  public  use  or  amusement,  1918D-115. 

Business:  validity  of  statute  or  ordinance 
requiring  place  of  business  (other  than 
liquor  saloon)  to  close  at  certain  hour, 
1918D-200. 

Claims:  sufficiency  of  statutory  notice  of 
claim  against  municipality  with  respect 
to  description  of  time  of  accident,  1918E- 
1026. 

Executions:  right  to  injunction  against  ex- 
ecution sale  of  municipal  property, 
1918C-223. 

Explosions  and  explosives:  validity  of  ordi- 
nance regulating  keeping  of  gasolene  or 
other  explosive  within  municipal  limits, 
1918E-145. 

Hospitals,  etc.:  liability  of  municipality  for 

negligence  in  respect  to  condition  of  or 

performance     of     services     incident     to 

hospitals,    pesthouses,    and    almshouses, 

r         1918D-803. 

Liitiative  and  referendum:  constitutionality 
of  initiative  and  referendum  provisions 
^  either  in  state  constitutions  or  municipal 
charters,  1918D-604. 


260 


AlSra".  CAS  DIGEST  (1918C-1918E). 


"Necessary  expense:"  what  is  "necessary  ex- 
pense" in  connection  with  municipal  ad- 
ministration, 1918D-925. 

Ordinances:  meaning  of  term  "contiguous"  as 
used  in  ordinance,  1918E-800. 

Picketing:  validity  of  ordinance  prohibiting 
picketing,  1918E-54. 

Streets:  construction  of  public  lavatory  in 
street  as  constituting  nuisance  or  as 
entitling  abutting  owner  to  compensa- 
tion,  1918D-906. 

— exoneration  between  municipality  and 
abutting  owner  as  to  damages  paid  on 
account  of  unsafe  highway,'  1918C-144. 

— extent  of  highway  crossing  which  railroad 
.  is  under  duty  to  maintain  in  safe  con- 
dition, 1918D-186. 

— liability  of  municipality  for  injuries 
caused  by  banana  peel  or  the  like  on 
sidewalk,  1918E-178. 

— liability  of  municipality  for  injury  due  to 
improper  use  of  street  which  it  has  ex- 
pressly permitted,  1918C-364. 

Sunday  laws  a*  directed  against  particular 
occupations,  1918E-1170. 

Taxation:  power  of  municipal  corporation  to 
griant  exemption  from  taxation,  1918E- 
1088. 

— public  service  plant  operated  by  municipal- 
ity as  subject  to  taxation,  1918E-85. 

Woman  suffrage:  validity  of  municipal  au- 
thorization of  woman  suffrage,  1918C- 
906. 


MUNICIPAL   IMPROVEMENTS. 

See  PuBLio  Impbovements 

MUSIC. 

See  Schools. 

NAMES. 

Effect  of  misnomer  of  landowner  in  tax  pro- 
ceeding, 1918I>-569. 

NATURAUZATION. 

Naturalization  of  alien  enemy,  1918C-723. 

NAVIGATION. 

See  Waters  and  Wateecoueses. 

"NECESSARILY  TRAVELED." 

Meaning  of  "necessary  travel"  or  "neces- 
sarily traveled"  as  used  with  respect  to 
mileage  allowance,  1918D-934. 

NECESSARY. 

Meaning  of  term  "necessary"  as  applied  to 

easement,   1918D-931. 


Meaning  of  term  "necessary"  as  used  in  ex- 
emption statute,  1918D-173. 

Meaning  of  term  "necessary"  as  used  in  will, 
1918D-1102. 


NECESSARY   EXPENSE. 

Meaning  of  term  "necessary  expense,"  1918D- 
921. 

.\  li.il  :-ir<  '  '.V    ■/    i  i    :  'rvf 

NEGLIGENCE. 

Abstract  of  title:  liability  of  abstractor  of 
titlQ  on  account  of  abstract  made  by 
him,  '1918E-93. 

Agency:  personal  liability  of  agent  having 
charge  of  real  property  for  misfeasance, 
1918D-233. 

Automobiles:  effect  on  rights  and  liabilities 
of  owner  or  driver  of  automobile  of  fail- 
ure to  comply  with  statutory  regulations 
as  to  registration,  license,  displaying 
number,  etc.,   1918D-847. 

Carriers  of  goods:  effect  of  liability  of-  car- 
rier of  goods  by  land  of  departure  from 
agreed  method  of  "transportation,  1918C- 
1075. 

— measure  of  damages  for  carrier's  delay  in 
transporting  property  intended  for  ex- 
hibition purposes,  1918E-1057. 

— unusual  and  excessive  amount  of  freight 
to  be  handled  as  excusing  delay  in  trans- 
portation by  carrier,  1918D-143. 

— ^what  constitutes  reasonable  time  for  re- 
moval of  goods  by  consignee  from  prem- 
ises of  carrier,  1918E-1114. 

Carriers  of  passengers : .  contributory  negli- 
gence of  passenger  in  riding  or  standing 
on  running  board  of  open  street  car, 
1918C-445. 

■ — liability  of  carrier  for  injury  to  passenger 
caused  by  car  door,  1918C-377. 

— liability  of  carrier  (other  than  sleeping 
car  company)  for  larceny  from  or  rob- 
bery of  passenger  by  stranger,  1918E- 
582. 

— ^liability  of  street  railway  for  injury  to 
passenger  caused  by  collision  at  railroad 
crossing,  1918C-47. 

Dead  bodies:  right  to  recover  for  mutilation 
of  dead  body,  1918D-736. 

Death  by  wrongful  act:  divorce  as  effecting^ 
right  of  child  to  recover  for  death  of 
parent,  1918E-419. 

— effect  of  recovery  for  death  by  wrongful 
act  on  rights  of  posthumous  child  of 
deceased,  1918D-556. 

Electricity:  liability  of  electric  company  for 
injuries  resulting  from  one  of  its  wires 
charging  wire  of  other  company  or  per- 
son, 1918C-916. 

— liability  of  electric  company  maintaining 
wires  in  close  proximity  to  those  of  an- 
other company  for  injury  to  employee  of 
latter  company,  1918D-4. 

^liability  of  one  maintaining  electric  wires 
over  private  property,  as  distinguished 
from  highway,  for  injuries  received  by 
adult  coming  in  contact  therewith,. 
1918C-594. 


CUMULATIVE  INDEX  TO  NOTES. 


261 


Ferries:  liability  of  owner  of  ferry  to  pas- 
sengers, 1918E-1083. 

Fires:  liability  of  licensee  in  possession  of 
property  for  damage  thereto  by  fire, 
1918D-378. 

Hospitals,  etc.:  liability  of  municipality  for 
negligence  in  respect  to  condition  of  or 
performance  of  service  incident  to  hospi- 
tals, pestliouses,  and  almshouses,  19181)- 
-     803. 

Husband  and  wife:  right  of  wife,  in  absence 
of  statute,  to  maintain  action  for  injury 
to  or  loss  of  consortium,  1918D-20S. 

Innkeepers:  liability  of  innkeeper  for  insult 
or   indignity  to  guest,   1918E-255. 

Insurance:  liability  of  agent  to  insurance 
company  for  failure  to  cancel  or  reduce 
policy  as  directed,  1918C-1043. 

Master  and  servant:  construction  of  federal 
hours  of  service  act,  1918C-797. 

— ^neglect  of  statutory  duty  by  employer  as 
permitting  action  by  employee  for  per- 
sonal injuries  notwithstanding  work- 
men's compensation  act,  1918D-334. 

— ^negligence  of  servant  as  defense  or  set- 
off in  action  for  wages,  1918D-79. 

Municipal  corporations:  sufficiency  of  statu- 
tory notice  of  claim  against  municipality 
with  respect  to  description  of  time  of 
accident,  1918E-1026. 

Physicians  and  surgeons:  liability  of  physi- 
cian for  injuries  caused  by  use  of  X-rays, 
1918E-258. 

Public  buildings:  liability  of  municipality 
for  unsafe  condition  of  building  main- 
tained for  public  use  or  amusement, 
1918D-115. 

Railroads:  liability  of  railroad  company  to 
person  other  than  passenger  for  personal 
injury  resulting  from  sparks  or  fire 
set  by  engine,  1918E-815. 

— presence  of  electric  bell  or  similar  device  at 
railroad  crossing  as  excusing  traveler 
from  duty  to  look  and  listen,  1918D-388. 

Streets  and  highways:  exoneration  between 
municipality  and  abutting  owner  as  to 
damages  paid  on  account  of  unsafe  high- 
way, 1918C-1144. 

— extent  of  highway  crossing  which  railroad 
is  under  dutv  to  maintain  in  safe  condi- 
tion, 1918D-186. 

— liability  of  municipality  for  injuries  caused 
bv  banana  peel  or  the  like  on  sidewalk, 
1918E-178. 

— liability  of  municipality  for  injury  due  to 
improper  use  of  street  which  it  has  ex- 
pressly permitted,   1918C-364. 

Telegraphs  and  telephones:  state  statutes 
penalizing  negligent  handling  of  tele- 
grams as  regulation  of  interstate  com- 
merce, 1918C-1039. 

Warehouses:  liability  of  warehouseman  for 
negligence  with  respect  to  cold  storage 
of  food,  1918C-895. 

Weapons:  civil  liability  of  sportsman  for 
shooting  another  while  hunting,  1918C- 
386. 


NEGOTIABLE    INSTRUMENTS. 

See  Bills  and  Notes. 


NITROGLYCERINE. 

Validity  of  ordinance  regulating  keeping  of 
nitroglycerine  or  other  explosive  within 
municipal  limits,  1918E145. 


NOTES. 

See  Bills  and  Notes. 

NOTHING    DUE. 

L^al  meaning  of  "nothing  due,"  1918E-791. 

NOTICE. 

See   Eleotions;    Municipal   Cobpobations  ; 
Seibvice  of  Process, 

NOXIOUS  V7EEDS. 

See  Weeds. 

NUISANCES. 

Construction  of  public  lavatory  in  street  as 
constituting  nuisance  or  as  entitling 
abutting  owner  to  compensation,  1918D- 
906. 

Construction  of  statute  prescribing  form  of 
indictment  for  maintaining  public  nui- 
sance, 1918C-563. 

NXmSES. 

Nursing  as  practice  of  medicine,  1918E-687. 

OBSCENITY. 

Construction  of  statute  prescribing  form  of 
indictment  for  obscenity,  1918C-561. 

OCCUPATION. 

Sunday  laws  as  directed  against  particular 

occupations,  1918E-1170. 
Waiver  of  forfeiture  of  benefit  certificate  for 

engaging      in      prohibited      occupation, 

1918D-310 
Waiver  of  forfeiture  of  benefit  certificate  for 

misrepresentation     as     to     occupation, 

1918D-308. 

OFFER    OF    COMPROMISE. 

See  CoMPBOMisE  and  Settlement. 

OFFICEOEIS. 

See   Cobpobations;    Public   Officers;    Ke- 
LiGious  Societies. 


262 


ANK  CAS  DIGEST  (1918C-1918E). 


OFFICIAI.    BONDS. 

See   SUBBTYSHIF. 

Oil- 
Validity  of  ordinance  regulating  keeping  ol 

oil  within  municipal  limits,  1918E-145. 
Withdrawal  from  settlement  of  public  landa 

occupied    for    oil    or    gas    exploration, 

1918C-1009. 

ORCHARDS. 

Changing  meadow  into  orchard  as  waste, 
1918D-543. 

ORDINANCES. 

See  Municipal  Cokpobations. 

0\(rN£RSHIP. 

Conclusiveness  of  license  registry  as  to  owner- 
ship of  motor  vehicle,  1918E-737. 

OWNERS   OF  PREMISES. 

Recovery  from  owner  of  premises  of  money 
lost  in  gaming,  1918E-142. 

PARENT    AND    CHILD. 

Divorce  as  affecting  right  of  child  to  re- 
cover for  death  of  parent,  1918E-419. 

Liability  of  father  for  support  of  children 
after  divorce  decree  in  his  favor  not  pro- 
viding for  custody  or  maintenance  of 
children,    1918C-939. 


Parties  to  action  by  minority  stockholder  to 
dissolve  corporation,   1918E-431. 

Parties  to  action  to  enjoin  execution  sale, 
1918C-290. 

Proper  parties  defendant  in  quo  warranto 
proceedings  against  corporation,  1918I>- 
228. 

Who  may  join  as  relators  in  mandamus  pro- 
ceeding, 1918C-873. 

See  also  Admissions  and  DECiAaATiONS; 
Lis   Pendens;    Kes  Judicata. 


PARTNERSHIP. 

Power  of  partner  to  bind  firm  by  conveyance 

of  partnership  realty,  1918E-1188. 
Eight  to  injunction  against  execution  sale  of 

partnership  property,  1918C-220. 
Rights   and   liabilities   of   alien   enemy   with 

respect  to  partnership  contract,  1918C- 

715. 
Right  to  personal  judgment  against  partner 

in  action  against  firm  as  such,  1918D- 

1136. 
Running   of    statute   of   limitations   against 

action  between  partners  for  accounting 

and  settlement  after  dissolution,  1918D- 

1107. 


PART  PAYMENT. 

See  Fbauds,  Statute  of. 


PARTY   W^ALLS. 

Rights  of  parties  with  respect  to  division 
wall  in  case  of  conveyance  of  part  of 
premises,  1918C-879. 


PASSENGERS. 


See  Cabbibbs  of  Passengebs. 


PARKS   AND  PUBUC   SQUARES. 

Changing  park  into  farm  as  waste,  1918D- 

543. 
Erection   of  buildings   in  public  parks   and 

squares,  1918E-489. 
Power  of  United  States  to  condemn  land  for 

park,  1918E-45. 


PAROL  EVIDENCE. 


PASTURE  LANDS. 

Changing  meadow  into  pasture  land  as  waste, 

1918D-543. 
Changing  pasture  into  arable  land  as  waste, 

1918D-543. 
Changing  pasture  into  brush  or  wood  lot  as 

waste,  1918D-543. 
Changing  wood  land  into  pasture  as  waste, 

1918D-543. 


Admissibility  of  parol  evidence  to  show  that 
subscription  to  stock  was  conditional, 
1918C-863. 

See  also  Fbaud,  Statute  of. 


PATENTS. 

Rights  and  liabilities  of  alien  enemy  with 
respect  to  patent,  1918C-715. 


PARTIES  TO   ACTIONS. 

Joinder  of 'parties  in  quo  warranto  proceed- 
ings, 3918D-214. 


PAYMENT. 

See  Gabnishment. 


f 


CUMULATIVE  INDEX  TO  NOTES. 


263 


PENSIONS. 


Right  to  injunction  against  execution  sale 
of  property  bought  with  pension  money, 
1918C-220. 

Validity  and  construction  of  statute  limiting 
amount  of  attorney's  fee  for  collection 
of  pension  claim  against  federal  govern- 
ment, 1918C-863. 


PERFORMANCE. 


See  Bbokebs. 
PERJURY. 


Construction  of  statute  prescribing  form  of 
indictment  for  perjury,  1918C-561. 

Necessity  that  justification  of  charge  of  per- 
jury be  justification  of  precise  charge, 
19180-1136. 


PERSONAL    INJURIES. 

See  Dakaoes;  NBGuaEOTCE. 


PERSONAL   PROPERTY. 

Injunction  against  execution  sale  of  person- 
al property,  1918C-205. 
See  also  Tbtjsts  and  Tbustees. 


PERSONAL    REPRESENTATIVES. 

See  Executors   and  Administbatobs;    Res 

JXn)ICATA. 


PESTHOUSES. 

Liability  of  municipality  for  negligence  in 
respect  to  condition  of  or  performance  of 
services  incident  to  pesthouse,  1918D- 
803. 


PETITIONS. 

.See  Public  Impbovembnts. 

PHOTOGRAPHS. 

Admissibility  of  photograph  to  establish  Iden- 
tity of  "dead  body,  1918G-703. 


PHYSICIANS  AND   SURGEONS. 

Construction     of     statute     regulating     sale 

of   liquor   on   prescription   of   physician, 

1918E-915. 
Liability  of  physician  for  injuries  caused  by 

use  of  X-rays,  1918E-258. 
Nursing  as  practice  of  medicine,  1918E-687. 
Physician's    death    certificate    as    evidence, 

19180-761 
See  also  Dentists. 


PICKETING. 

Legality  of  picketing,  1918E-64. 

PLACE    OF    BUSINESS. 

See  Business. 

PLATFORMS. 

See  Cabbiebs  of  Passengers. 

PLEADING. 

Admissibility  and  conclusiveness  againiM 
pleader,  in  subsequent  action  with  stran- 
ger, of  admission  in  pleading,  1918E-54f. 

Pleading  in  action  to  enjoin  execution  sale, 
1918C-296. 

Pleadings  in  action  by  minority  stockholder 
to  dissolve  corporation,   3918E— 431. 

Waiver  of  verification  of  pleading,  ]'9f.6S  ^b. 

POLICY. 

See  Insxjbancb. 

POOR  AND  pooia.  L^wai 

See  SuPEBlNTENDKl/r4  OV  POOE. 

POSTHUMOUftf    CHILD. 

See  Death  b/  Wbonofcl  Act. 

PCyWUER, 


Validity  of  ordiiuace  regulating  keeping  ot 

powder  within  municipal  limits,  1918E- 

145. 

TJIVIK^ 


PHYSICAL    CHARACTERISTICS. 

Admissibility  of  evidence  of  physical  char- 
acteristics to  establish  identity  of  dead 
body,  19180-700. 


fOlVERS. 

How  power  wf  bj/pointment  to  be  executed  by 

will  may  be  exercised,  1918E-1161. 
Power  of  siile  in  trust  deed  or  mortgage  as 
'     power  I  oupled  with  interest,  1918E-1021. 


264 


ANN.  CAS  DIGEST  (1918C-1918E). 


PRACTICE. 


jld'iH'i 


Practice  in  action  b^-  minority  stockholder  to 
dissolve  corporation,   1918E-431. 


PRACTICE  OF  LAW. 

See  Attorneys. 

PRACTICE    OF   MEDICINE. 

See  Physicians  and  Subgeons. 

PRECINCTS. 

"Village"  as  synonymous  with  precinct, 
1918D-267. 

PRESCRIPTIONS. 

See  Physicians  and   Subgeons. 

PRESUMPTIONS. 

Facts  which  must  be  shown  in  connection 
with  absence  to  establish  presumption  of 
death,  1918D-758. 

Presumption  as  to  existence  of  relation  of 
independent  contractor,  1918C-632. 

Presumption  as  to  validity  of  subsequent 
marriage,    1918E-1233. 

Validity  of  provision  in  will  creating  pre- 
sumption with  respect  to  survivorship 
in  common  disaster,  1918D-842. 

PRIMARIES. 

See  Elbotions. 


PROCESS. 

Eight  to  enjoin  execution  sale  on  grovmd  of 
failure  to  serve  process,  iyi8C-237. 

Validity  and  construction  of  statute  requiring 
service  of  notice  on  public  official  in 
divorce  suit,  1918D-1098. 


PROFITS. 

See  FiEB  Insueance. 

PROHIBITED   ARTICLES. 

See  EiEE  Insubance. 

PRO  RATE. 

Legal  meaning  of  "pro  rate"  or  pro  rata," 
1918C-791. 

PUBUiC    BUIIJ)INGS. 

See  Buildings. 

PUBLIC     CONTRACTS. 

See  Contracts;  Mechanics*  Liens. 

PUBLIC  FUNDS. 


'ST-yvr'  ► 


See  Public  Officers. 


PUBLIC    IMPROVEMENTS. 

Who  may  petition  for  or  remonstrate  against 
municipal  improvement,  1918E-837. 


PRINCIPAL    AND    AGENT. 

See  Agency. 

PRINCIPAL  AND   SURETT. 

See  Surety. 

PRIORITIES. 

See  Mechanics'  Liens. 

PRIVILEGED    COMMUNIQATIQN8. 

See  Libel  and  Slaitd^ 


PUBLIC    LANDS. 

Entryman  on  public  lands  as  bona  fide  pur- 
chaser, 1918C-461. 

Public  lands  subject  to  withdrawal  from 
settlement  for  water  power  or  similar 
purpose,  1918C-1008. 


PUBLIC    LAVATORIES. 

See  Lavatories. 

.aK<iAA«>070H 
PUBLIC    LIBRARIES. 

See  Libraries. 


PROBATE. 

See  Wills. 


PUBLIC    NXnSANCES. 

See  NmsiWvcEs. 


CUMULATIVE  IJ^^DEX  TO  NOTES. 


26i 


PUBUC    OFFICERS. 

Bond:  liability  of  surety  on  bond  of  public 
officer  for  acts  wholly  outside  official 
duty,  1918C-1020. 

Compensation:  meaning  of  "necessary  travel" 
or  "necessarily 'traveled"  as  used  with, 
respect  to  mileage  allowance,  1918D-934. 
right  of  public  officer  to  additional  com- 
pensation for  duties  imposed  after  com- 
mencement of  term  in  absence  of  statu- 
tory authority  therefor,  1918E-1062. 

Consecutive  service:  validity  and  construc- 
tion of  statute  limiting  consecutive  serv- 
ice by  public  officer,  1918E-358. 

Divorce:  validity  and  construction  of  stat- 
ute requiring  service  of  notice  on  pubUjo 
official  in  divorce  suit,  1918D-1098. 

Interest:  liability  of  public  officer  for  inter- 
est received  on  public  funds,  1918E-105. 

Statutes:  right  of  ministerial  officer  to  ques- 
tion validity  of  statute,  1918I>-1199. 

See  also  Elections, 


rUBUC    RECORDS. 

Admissibility  in  evidence,  of  public  record 
containing  physician's  death  certificate, 
1918C-766. 

Recital  in  public  record  as  proof  of  age, 
1918E-266. 


FUBUC    SCHOOLS. 

See  Schools. 


PUBLIC    SERVICE    COMMISSIONS. 

Power  of  public  service  commission  to  compel 
railroad  to  build  sidetrack,  1918E-339. 


PUBLIC    SERVICE    CORPORATIONS. 

Right  to  injunction  against  execution  sale 
of  propertv  of  public  service  corpora- 
tion, 1918C-225. 


PUBLIC   SERVICE  PLANTS. 

See  Taxation. 


QUESTIONS    OF    LAW    AND    FACT. 

Existence  of  relation  of  independent  con- 
tractor as  question  of  law  or  fact, 
1918C-632. 

Reasonableness  of  time  for  removal  of  goods 
by  consignee  from  premises  of  carrier  as 
question  of  law  or  fact,  1918E-1120. 

.    r.i'Mcna  z "■:  a "i 2 u  .i a j;  i 

QUO    W^ARRANTO. 

Joinder  of  parties  in  quo  warranto  proceed- 
ings, 1918D-214. 

Proper  parties  defendant  in  quo  warranto 
proceedings  against  corporation,  1918D- 

228. 


RAILROADS. 

Crossings:  extent  of  highway  crossing  which 
railroad  is  under  duty  to  maintain  in 
safe  condition,  1918D-186. 

• — presence  of  electric  bell  or  similar  device 
at  railroad  crossing  as  excusing  traveler 
from .  duty  to  look  and  listen,  1918D- 
388. 

Depots:  right  to  specific  performance  of  con- 
tract by  railroad  to  erect  depot  or  sta- 
tion, 1918D-1085. 

Executions:  right  to  injimetion  against  ex- 
ecution sale  of  property  of  railroad  com- 
pany, 19180-225. 

Fires:  liability  of  railroad  company  to  per- 
son other  than  passenger  for  personal 
injury  resulting  from  sparks  or  fire  set 
by  engine,  1918E-815. 

Independent  contractors;  person  employed  in 
connection  with  railroad  as  independent 
contractor,   1918C-657. 

"Right  of  way:"  what  is  included  within 
term  "right  of  way"  as  applied  to  rail- 
road, 1918D-1040. 

"Roadway:"  meaning  of  "roadway"  as  ap- 
plied to  railroad,  1918D-728. 

Sidetracks:  power  of  public  service  commis- 
sion to  compel  railroad  to  build  side- 
track, 1918E-339. 

"Track:"  meaning  of  "track"  as  applied  to 
railroad,    1918E-233. 

See  also  Casriebs  of  Passenoebs;  Labob 
Laws. 


PURCHASERS  PENDENTE  LITE. 

See  Lis  Pendens. 


RAILROAD   TRACK. 

Meaning  of  "railroad  track,"  1918E-237. 


PURCHASERS    WITHOUT    NOTICE. 

See  Rescission,  Cancellation  and  Refob- 

MATION. 


RAILWAY    TRACK.    - 

Meaning  of  "railvray  track,"  1918E-242. 


QUARRIES. 

See  Mines  and  Minebals. 


RATES. 

See  Cabbieb  of  Goods. 


266 


ANN.  CAS  DIGEST  (1918C-1918E). 


RATIFICATION. 

Ratification  of  deed  or  contract  by  married 
woman  invalid  for  defective  acknowledg- 
ment, 1918E-651. 

See  also  SxAnmss. 


REAL  ESTATE  BROKERS. 

See  BB0E3SS. 

REAL    PROPERTY. 

Injunction    against    execution    sale    of   real 

property,  1918C-152. 
See  also  Pabtnebshp;  Tbusts  Ain>  Tbustebs. 


REFEREES. 

Impeachment  of  award  of  referees  for  mis- 
take of  fact  not  involving  exercise  of 
judgment,   19180-974. 

Termination  of  authority  of  referee,  19180- 
616. 


REFERENDUM. 

See  Initiative  and  Refebendum. 

REFORMATION. 

See  Rescission,  Cance2.latiox  Ain>  RBittt- 

MATION. 


REASONABLE   SUM. 

See  TICKETS  and  Fajbes. 


REGISTRATION. 

See  Axttomobiles. 


REASONABLE  TIME. 

See  Cabjribbs  of  Goods. 


REINSTATEMENT. 

See  Insubanob. 


RECEIVERS. 

What  Is  '"necessary  expense"  in  administer- 
ing estate  under  receivership,  1918D-' 
923. 


RECITALS. 

See  AoiB. 

RECORDING    ACTS. 


Necessiiy  for   recording  assignment  of  pro* 
ceeds  of  building  contract,  1918D-618. 


RECORDS. 

<MiU\  See  Public  Recobds. 

RECOUPMENT. 

See  Set-off. 

RECOVERY    OF    LOSSES. 

2|.2.g^  See  Gahino. 

REDUCTION  OF  POLICY. 

See  Insubance. 


RELATORS. 

See  Mandamus. 

RELEASE  AND  DISCHARGE. 

Effect  of  release  of  joint  tortfeasor,  19181>- 
279. 

RELIGIOUS  FREEDOM. 

See  Schools. 


RELIGIOUS   SOCIETIES. 

Dissolution  or  termination  of  existence  of 
religious  society,  1918D-1056. 

Right  of  court  to  review  action  of  church 
authorities  in  disciplining  member, 
19180-622. 

Utterance  of  clergyman  or  other  representa- 
tive of  religious  organization  (other  than 
statement  from  pulpit)  as  actionable, 
19180-780. 

/A  I J  J  a 

REMAINDERS   AND    REVERSIONS. 

Acceleration  of  remainders  by  renunciation 
of  will  by  widow,  1918C-412. 

Right  of  remainderman  to  enjoin  execution 
gale,  1918C-267. 


REMAINING  DUE. 

Legal  meaning  of  "remaining  due,"  1918E- 


CUMULATIVE  INDEX  TO  NOTES. 


267 


REMONSTRANCE. 

See  Public  iMPROVEMHSfTS. 


Judgment  or  settlement  in  bastardy  proceed- 
ing as  barring  right  of  action  for  dam- 
ages for  seduction,  1918D-669. 


KEMOVAI.    OF    GOODS. 

See  Cabbikrs  of  GiOods. 

RENT. 

See  Landlobd  and  Tenajtt. 

RENUNCIATION. 

See  Equitable  Eleotioit;   Executors  and 
Adkinistbatobs;  Tbusts  and  Tbusises. 


RESOLUTIONS. 

Meaning  of  "about"  in  resolution  when  used 
with  reference  to  quantity,  1918D-706 


BEVOCATION    OF   AUTHORITY. 

See  Bbokebs. 

BEVOCATION   OF   WII^L, 

See  Wnxs. 


REPAIRS. 

See  Laktdlobd  and  Tenant. 


BIDING    ON   FI.ATFORM. 

6ee  Cabbiebs  of  Passengebs. 


REPORTS. 

Meaning  of  "about"  in  report  when  used  with 

reference  to  quantity,  1918D-706. 
See  also  Grand  Jury. 


REPRESENTATIONS. 

See  Insurance. 

REPRESENTATIVE  CAPACITY. 

See  Res  Judicata. 

REPURCHASE    OF    STOCK. 

See    Stock   and    Stockholders. 


RIGHT    OF    WAY. 

What  is  included  in  term  "right  of  way"  aa 
applied  to  railroad,  1918D-1040. 


RIGHTS  OF  ACCUSED. 

See  Criminal  Law. 

RIPARIAN  PROPRIETORS. 

See  Waters  and  Watebcoubses. 

ROADWAY. 

Meaning  of  "roadway"   as  applied  to  rail- 
road, 1918D-728. 


RESCISSION,  CANCEIiliATION 
AND    REFORMATION. 

Necessity  that  abandonment  or  rescission  of 
written  contract  for  sale  of  goods  be  in 
writing,  1918C-1213. 

Rescission  of  contract  of  sale  under  uniform 
sales  act,  1918r)-400. 

Right  to  reform  description  in  deed  or  mort- 
gage as  against  piiirchaser  without  no- 
tice, 1918D-147. 


RES   JUDICATA. 

Judgment  in  action  by  or  against  individual 
as  resjudieata  in  action  by  same  person 
in  respresentative  capacity,  1918E-1103. 

Judgment  in  action  by  or  against  representa- 
tive as  res  judicata  in  action  by  same 
person  individually,  1918E-1096. 


ROBBERY. 

See  Cabbiebs  of  Passengebs. 

.   RULES. 

See  Cabbiess  of  Passengebs;  Labob  Cok- 

BINATIONS. 

RUNNING    BOARD. 

See  Cabbiebs  of  Passengebs. 

BALES. 

"About:"  meaning  of  "about"  in  contract  for 
sale  of  personalty  when  used  with  refer- 
ence to  quantity,  1918D-695. 


268 


ANN.  CAS  DIGEST  (1918C-1918E). 


Conditional,  sales:  conditional  sale  as  within 
purview  of  uniforui  sales  act,  191 8D- 
408.     • 

; — flight  of  recovery  for  property  sold  and 
delivered  conditionally  when  property 
is  destroyed  without  fault  of  purchaser 
before  price  falls  due,  1918D-381. 

Independent  contractors;  person  employed  in 
connection  with  selling  goods  as  inde- 
pendent contractor,  1918C-658. 

"Say  about:"  meaning  of  "say  about"  in  con- 
.  ..tract  for  sale  of  personalty  when  used 
with  reference  to  quantity,  1918D-700. 

Uniform  sales  act:  construction  of  uniform 
sales  act,  1918D-400. 

See  also  Exexjutions;  Frauds,  Statute  of; 

InJOXIOATINQ  LliQUOES, 


SALESMEN. 

See  Agenot.  ^ 

SALOONS. 

See  Landlobd  and  Tenant. 

SAY  ABOUT. 

Meaning  of  "say  about"  in  contract  for  sale 
of  personalty  when  used,  with  reference 
to  quantity,  1918D-700. 


SERVICE  OF  PROCESS. 

Right  to  enjoin  execution  sale  on  ground  of 
failure  to  serve  process,  1918C-237. 

Validity  and  construction  of  statute  requir- 
ing service  of  notice  on  public  oilicial  in 
divorce  suit,  1918D-1098. 


SET-OFF. 

Set-off  of  prior  winnings  in  action  to  recover 
money.  lost  at  gaming,  1918C-771. 

Set-off  or  recouiJinent  against  claim  for  addi- 
tional compensation  under  contract  with 
United   States,   1918E-20. 

What  may  be  shown  as  defense  or  set-off  in 
action  for  wages,   1918D-79. 
.il  uKA  tsxajs 

SETTLEMENT  OF  ACCOUNTS^ 

See  Partnership. 


SETTLEMENT  OF  ACTIONS. 

See     Compromise    and    Settlement;     Em- 
ployees' Liability  iNSxmANCE. 


SETTLEMENT  OF  PUBLIC  LANDS. 

See  Public  Lands. 


SCHOOLS. 

«flLOT?r'  TAm^ 

College  fraternity  as  exempt  from  taxation, 

1918E-278. 
Holding    of    school    or    school    exercises    in 

church  or  sectarian  building,  1918C-589. 
Teaching  of  music  in  public  schools,  IQISD- 

163. 


SEARCH. 

See  Abstract  of  Title. 


SEWERS. 

Pe^'son  contracting  to  construct  sewer  or  lay 
sewer  pipe  as  independent  contractor, 
1918C-658. 

SHERIFFS. 

What  is  "necessary  expense"  incurred  by 
sheriff,  1918D-928. 


SHIPS   AND    SHIPPING. 


SECTARIAN   BUILDINGS. 

See  Schools. 


Person  contracting  to  load  or  unload  vessel 
as  independent  contractor,  19180-659. 


SEDUCTION. 

Judgment  or  settlement  in  bastardy  pro- 
ceeding as  barring  right  of  action  for 
damages  for  seduction,  1918D-669. 

Necessity  in  criminal  prosecution  for  seduc- 
tion that  female  should  be  corroborated, 
and  elements  to  which  corroboration 
must  extend,  1918E-468. 

SELECTIVE   DRAFT  ACT. 

See  Abmt  and  Navy. 


SHOOTING. 

See  Weapons. 

SIDE  LINE. 

See  Agency. 

SIDETRACK. 

See  Railroads. 


CUMULATIVE  ^DEX  TO  I^OTES. 

SIDEWALKS. 


269 


See   Streets   and   HiGHWAYa 

Sn^EXCE. 

See  Admissions  and  Declarations, 

SI^NDEB. 

See  Libel  and  Slander. 

SOCIETIES  ANI}  CLUBS. 

Social  club  as  exempt  from  taxation,  19 18E- 

277. 
See  also  Rexigious  Societies. 


What  is  "necessary  expense"  incidental  to 
administration  of  state  affiairs,  1918D- 
928. 

See  also  Intekstate  Commerce. 


STATIONS. 

See  Eailroaos. 

STATUTE  OF  FRAUDS. 

See  Frauds,  Statute  of. 

STATUTE  OF  LIMITATIONS. 

See  LIMITATION  of  Actions. 


SOLE   AND    UNCONDITIONAIi 
OW^NEBSHIP. 

See  Fire  Insueanoej. 


SOLICITATION  OF  EMPLOYMENT. 

See  Attorneys. 

SPECIAL  ASSESSMENTS. 

See  Public  Improvements;  Taxatiou. 

SPECIFIC  PERFORMANCE. 

Bight  to  specific  performance  of  contract  by 

railroad  to  erect  depot  or  station,  1918D- 

1085. 
Specific  performance  of  contract  to  exchange 

land,  1918D-717. 
Specific    performance   of   executory   contract 

by  married  woman  invalid  for  want  of 

acknowledgment,    1918E-&35. 

SPENDTHRIFT  TRUSTS. 

See  Trusts  and  Trustees. 

SPORTSMEN. 

See  Weapons. 

STATEMENT  OF  FACT. 

See  C!OMPBOMISE  and  SETTLE3fI2TT. 

STATES. 

Power  of  United  States  to  condemn  land  in 
state,  1918E-42. 


STATUTES. 

Construction:  meaning  of  term  "contiguous" 
as  used  in  statute,  1918E-800. 

— ^meaning  of  term  "pro  rate"  or  "pro  rata" 
as  used  in  statute,  1918C-792. 

—words  of  description  or  exception  as  re- 
ferring to  time  of  passage  or  time  of 
taking  effect  of  statute,  1918I>-825. 

Validity:  impeachment  of  act  of  legislature 
by     reference     to     legislative     journals, 

i         1918D-253. 

—right  of  ministerial  ofiicer  to  question  va- 
lidity of  statute,  1918D-1199. 

— ^validity  of  statute,  other  than  local  option 
law,  which  takes  effect  only  upon  rati- 
fication by  voters,   1918E-573. 

See  also  Corporation;  Sales;  Tips. 


STILL  DUE. 

Legal  meaning  of  "still  due,"  1918E-791. 

STOCK   AND    STOCKHOLDERS. 

Dissolution  of  corporation:  right  of  minor- 
ity stockholder  or  stockholders  to  main- 
tain suit  to  wind  up  or  dissolve  corpora- 
tion, 1918E-424 

Executions:  right  to  injunction  against  ex- 
ecution sale  of  corporate  stock,  1918C- 
213. 

lien  on  stock:  validity  and  effect  of  provi- 
sion in  charter,  statute,  or  by-law  creat- 
ing lien  on  stock  in  favor  of  corpora- 
tion, 1918D-368. 

Lost  certificate:  right  of  stockholder  to  com- 
pel duplication  of  lost  certificate,  1918E- 
66. 

Subscription  to  stock:  admissibility  of  parol 
evidence  to  show  that  subscription  to 
stock  was  conditional,  1918C-853. 

Transfer  of  stock;  validity  and  construction 
of  agreement  by  seller  of  corporate  stock 
to  repurchase  on  demand,  1918D-744. 


270 


ANN.  CAS  DIGEST  (1918C-1918E). 


STOPPAGE  IN  TRANSITTT. 

Stoppage   in    transitu   under   uniform   eales 
act,  1918D-411. 


STORAGE. 

See  Food  and  Dkugs;  Explosions  and  Ex- 
plosives; FiBE  Insubance. 


STRANGER. 

See  Pleading 

STREET   RAILWAYS. 

Meaning  of  "track"  a«  applied  to  railroad, 

1918E-233. 
See  also  Cabbiebs  ov  Passenoebs 


SUBSEQUENT    MARRIAGE. 

See  Mabbiage. 

SUFFRAGE. 

See  Elections. 


SUICIDE. 

Declarations  or  fvritten  statements  made  by 
insured  previous  to  death  as  evidence  of 
euicide,  1918C-1050. 

Waiver  of  forfeiture  of  benefit  certificate  for 
violation  of  suicide  clause,  1918D-312. 


SUM  DUE. 

Legal  meaning  of  "sum  due,"  1918E-792. 


STREETS  AND  HIGHWAYS. 

Condemnation  of  land:  power  of  United 
States  to  condemn  land  for  highway, 
1918E-46. 

Damages:  exoneration  between  municipality 
and  abutting  owner  as  to  damages  paid 
on  account  of  unsafe  highway,  1918C- 
1144. 

Independent  contractors:  person  employed  in 
connection  with  work  on  street  or  high- 
way as  independent  contractor,  1918C- 
658. 

Lavatories:  construction  of  public  lavatory 
in  street  as  constituting  nuisance  or  as 
entitling  abutting  owner  to  compensa- 
tion, 1918D-906. 

Railroad  crossings:  extent  of  highway  cross- 
ing which  railroad  is  under  duty  to  main- 
tain in  safe  condition,  1918D-186. 

Sidewalks:  liability  of  municipality  for  in- 
juries caused  by  banana  peel  or  the  like 
on  sidewalk,  1918E-178. 

Use  of  streets:  liability  of  municipality  for 
injury  due  to  improper  use  of  street 
which  it  has  expressly  permitted,  1918C- 
364. 


SUBCONTRACTORS. 

See  Building  Conteacts. 

SUBROGATION. 

Right  of  surety  who  has  paid  debt  to  b« 
subrogated  to  rights  of  creditor  as  af- 
fected by  fact  that  surety  became  such 
for  consideration,   1918E-660. 

SUBSCRIPTION. 

See  Stock  and  Stockholdebs. 


SUMMARY    JUDGMENTS. 

See  Judgments. 

SUNDAYS  AND  HOLIDAYS. 

Sunday  laws  as  directed  against  particular 
occupations,  1918E-1170. 

SUPERINTENDENTS  OF  POOR. 

What  is  "necessary  expense"  incurred  by 
superintendent  of  poor,  1918D-928. 

SUPERVISORS. 

What  is  "necessary  expense"  incurred  by 
board  of  supervisors,  1918D-926. 

SUPPORT  AND  MAINTENANCE. 

Liability  of  father  for  support  of  children 
after  divorce  decree  in  his  favor  not 
providing  for  custody  or  maintenance  of 
children,  1918C-939. 

SURETYSHIP. 

Building  contracts:  priority  as  between  as- 
signee of  proceeds  of  building  contract 
and  surety  of  contractor,  1918D-640. 

Conditional  signing:  liability  of  surety  sign- 
ing bond  on  condition  that  another  sure- 
ty be  secured,  1918D-512. 

Consideration  for  contract:  extension  of  time 
for  payment  of  debt  as  suflBcient  con- 
sideration for  contract  of  suretyship, 
1918C-576. 

Contribution:  running  of  statute  pf  limita- 
tions against  contribution  between  sure- 
ties,  1918E-518. 


r 


CUMULATIVE  IXDEX  TO  NOTES. 


271 


Executions:  right  of  surety  to  enjoin  execu- 
tion sale,  1918C-266. 

OflScial  bonds:  liability  of  surety  on  bond  of 
public  ofl&cer  for  acts  wholly  outside 
official  duty,  1918C-1020. 

Subrogation:  right  of  surety  who  has  paid 
debt  to  be  subrogated  to  rights  of  credit- 
or as  affected  by  fact  that  surety  became 
such  for  consideration,  1918E-660. 

Summary  judgment:  entry  of  summary  judg- 
ment against  surety  on  bond  in  nature 
of  appeal  bond,  1918C-1151, 

— entry  of  summary  judgment  against  surety 
on  injunction  bond,  1918C-97. 


SURROGATES. 

What  is  "necessary  expense"  incurred  by  sur- 
rogate, 1918I>-921. 


SURVIVORSHIP. 

Validity  of  provision  in  will  relating  to  sur- 
vivorship in  common  disaster,  1918D-842. 


TELEGRAPHS  AND  TELEPHONES. 

Effect  on  state  statute  or  rule  of  federal  as- 
sumption of  control  of  telegraph  com- 
panies, 1918C-1033. 

Federal  Hours  of  Service  Act  as  applicable 
to  telegraph  operator,  1918C-802. 

Kight  to  injunction  against  execution  sale  of 
property  of  telegraph  or  telephone  com- 
pany, 1918C-230. 

State  statutes  penalizing  negligent  handling 
of  telegrams  as  regulation  of  interstate 
commerce,  1918C-1039. 


TENANTS  IN   COMMON. 

Right  of  tenant  in  common  to  enjoin  execu- 
tion sale,  1918C-267. 

Validity  of  conveyance  of  specific  right  or 
easement  in  land  by  one  tenant  in  com- 
mon, 1918C-92. 


TENDER. 

See  Tickets  and  Fabes. 


SUSPENSION. 

See  CoxTBACTS, 


TERMINATION  OF  AUTHORITY. 

See  Referees. 


TAXATION. 

Exemption  from  taxation:  Masonic  Lodge  or 
body  as  charitable  institution  exempt 
from  taxation,  1918E-1043. 

— power  of  municipal  corporation  to  grant 
exemption  from  taxation,  1918E-1088. 

■ — social  club  as  exempt  from  taxation,  1918E- 
277. 

"Machinery:"  meaning  of  "machinery"  in 
tax  statute,  1918E-208. 

Misnomer:  effect  of  misnomer  of  landowner 
in  tax  proceeding,   1918D-569. 

Public  service  plant  operated  by  municipality 
as  subject  to  taxation,  1918E-85. 

Special  assessments:  outstanding  special  as- 
sessment as  breach  of  covenant  against 
incumbrances,   1918D-975. 

— validity  of  special  assessment  levied  by 
front  foot  instead  of  according  to  bene- 
fit,   1918D-432. 

Tax  sales:  purchaser  at  tax  sale  as  pur- 
chaser pendente  lite,   1918C-78. 

Trusts  and  trustees:  taxes  and  carrying 
charges  on  personal  property  held  in 
trust  as  payable  out  of  income  or  capital, 
1918E-989. 

— taxes  and  carrying  charges  on  real  estate 
held  in  trust  as  payable  out  of  income 
or  capital,  1918E-947. 


TERMINATION  OF  EXISTENCE. 

See  Religious  Societies. 

TERRITORIES. 

Power  of  United  States  to  condemn  land  in 
territory,  1918E-43. 

TESTAMENTARY  TRUSTEES. 

See  Tbusts  and  Tbustees. 

THEATERS  AND  AMUSEMENTS. 

Person  employed  in  connection  with  public 
exhibition  as  independent  contractor, 
1918C-656. 

See  also  Buildinqs;  Cabbiebs  of  Goods. 

TICKETS  AND  FARES. 

Validity  of  rule  of  carrier  requiring  passen- 
ger to  pay  fare  into  box,  register,  or  the 
like,  1918D-473. 

What  is  reasonable  sum  which  passenger  may 
tender  in  payment  of  fare,  1918D-182. 


TAXES  DUE. 

L^al  meaning  of  "taxes  due,"  1918E-792. 


TIME    OF   ACCIDENT. 

See  MxTNiciPAi.  Cobpobations. 


272  ANN.  CAS  DIGEST  (1918C-1918E). 

TIME  OF  ENTERING  EMPLOYMENT.  TREATIES. 


See  Master  and  Seevant. 


TIPS. 

Validity  and  construction  of  anti-tipping  act, 
1918IX-238. 


Effect  of  treaty  on  right  of  alien  enemy  to 
sue,  1918C-720.        , 


TRENCHES. 

See  Watebs  and  Wateecotjbses. 


TITLE. 

See  Abstract  of  Title;   Bailments;   Fibb 
Insubanoe. 


TOOLS. 

Meaning  of  "necessary"  tools  or  implements 
as  used  in  exemption  statute,  1918D-176. 


TORTFEASORS. 

See  Release  and  Dischabgb^ 

TOTAL  DISABILITY. 

See  Insukanoex 

TOAVNS. 

"Village"  as  synonymous  with  town,  1918D-- 
264. 

TRACK. 

Meaning  of  "track"  as  applied  to  railroad, 
1918E-233 

TRADE  UNIONS.     . 

See  Labor  Combinations. 

TRANSACTIONS.  /^VITH    DECEDENT. 

See  Witnesses. 

TRANSPORTATION. 

See  Carriers  of  Goods;  Carriers  of  Ltvb 
Stock. 


TRUCKING. 

Person  employed  in  connection  with  trucking 
or  hauling  as  independent  contractor, 
1918C-658. 


TRUST  DEEDS. 

Power  of  sale  in  trust  deed  or  mortgage  as 
power  coupled  with  interest,  1918E-1021. 


TRUSTS  AND  TRUSTEES. 

Alien  enemies:  rights  and  liabilities  of  alien 
enemy  with  respect  to  trust,  1918C-715. 

.Executions:  right  of  trustee  or  cestui  que 
trust  to  enjoin  execution  sale,  1918C-152. 

iFraud  or  imdue  influence:  setting  aside  trust 
during  life  of  creator  for  fraud  or  un- 
due  influence,   1918C-836. 

Implied  trusts:  parol  agreement  made  with 
person  interested  in  land,  that  promisor 
will  buy  land  at  judicial  sale  and  hold 
for  benefit  of  promisee,  as  implied  trust 
enforceable  in  equity,   1918E-309. 

"Necessary  expense:"  what  is  "necessary  ex- 
pense" in  administering  trust  estate, 
1918D-924. 

Renunciation  of  trust:  what  constitutes  re- 
nunciation of  trust  by  executor  or  testa- 
mentary trustee,  1918D-459. 

Spendthrift  trusts:  effect  on  spendthrift 
trust  of  bankruptcy  of  beneficiary, 
1918D-91. 

— ^validity  of  spendthrift  trusts,  1918C-965. 

Taxation:  taxes  and  carrying  charges  on  per- 
sonal property  held  in  trust  ns  payable 
out  of  income  or   capital,   191SE-989. 

—taxes  and  carrying  charges  on  real  estate 
held  in  trust  as  payable  out  of  income 
or  capital,  1918E-947. 


TRUTH. 

See  Libel  and  Slander. 


TRAVEL. 

See  PuBUC  Officers. 


TUNNELS. 

Person  contracting  to  build  tunnel  a£  inde- 
pendent contractor,  1918C-658. 


TRAVELING  SALESMEN. 

See  Agenct. 


TURF. 

Removing  tuft  as  waste,  1918D-543. 


CUMULATIVE  IJSTDEX  TO  NOTES 

UNAUTHORIZED  USE. 

See  Bailments. 


273 


Right  of  holder  of  A'eiidor's  lioi  to  enjoin  ex- 
ecution  sale,   191SC-276. 


UNDUE    INFI.UENCE. 

Setting  aside  trust  during  life  of  creator  for 
luidue  influence,  191SC-836. 


UNIFORMITY. 

See  Hawkers  and  Peddi^ees. 

UNIFORM  SAI.es  ACT. 

See  Sales. 

UNIONS. 

See  Labob  Combinations. 

UNITED    STATES. 

Nature  and  extent  of  power  of  United  States 
to  condemn  land,  1918E-39. 

Rights  with  respect  to  annulment,  suspen- 
sion or  modification  of,  or  additional 
compensation  under,  contract  with  Unit- 
ed  States  government,   1918E-5. 

Validity  of  assignnaent  of  proceeds  of  build- 
ing contract  with  United  States,  IQISD- 
614. 


VENUE. 

Venue    of    action    to   enjoin    execution   sale, 

1918C-277. 


VERDICT. 

AflSdavit  of  jurors  as  evidence  that  verdict 
returned  or  entered  diflPered  from  verdict 
actually  found,  1918E-287. 

Meaning  of  "about"  in  verdict  when  used 
with  reference  to  quantity,  1918D-706. 


VERIFICATION. 

See  Pleading. 

VESSELS. 

See  Ships  and  Shippino. 

VILLAGES. 

Meaning  of  "village,"   1918D-258. 

VOTING  CONTESTS. 

See  Fbaud. 


USING  PROHIBITED  ARTICLES. 

See  Fire  Insueanoe. 

VENDOR  AND  PURCHASER. 

Application  of  doctrine  of  bona  fide  pur- 
chase of  land  to  purchase  of  equitable 
interest,   1918C-461. 

Meaning  of  "about"  in  contract  for  sale  of 
realty  when  used  with  reference  to 
quantity,  1918D-701. 

Rights  of  parties  under  deed  or  contract  by 
married  woman  invalid  for  defective  ac- 
knowledgment, 1918E-648. 

Rights  of  parties  under  deed  or  contract  by 
married  woman  invalid  for  want  of  ac- 
knowledgment, 1918E-631. 

Vendee  under  executory  contract  of  purchase 
as  sole  and  unconditional  owner  of  prop- 
erty under  fire  insurance  policv,  1918C— 
143. 

See  also  Brokers;  Lis  Pendens;  Mort- 
gages;   Pabtt   Walls;    Specitic   Pe»- 

FOBMANCi:. 


WAGES. 

Validity  of  statute  fixing  minimum  wage  rate 
for  private  employment,  1918D-465. 

What  may  be  shown  as  defense  or  set-off  in 
action  for  wages,  1918D-79. 

See  also  Tips. 


WAIVER. 

See  Beneficial  Associations;  Misconduct 
OF  Counsel;  Pleading;  Witnesses. 


WAR. 

Rights  and  liabilities  of  alien  enemies,  1918C- 
709. 

See  also  Army  and  Navt;  Civil  Wae;  Gov- 
ernment. 


W^AREHOUSES. 


VENDORS'  LIENS. 

Loss    of   vendor's    lien    under    uniform    sales 
act,  1918D-412. 

Ann.  Cas.  Dig.  1918C-E.— 18. 


Cold  storage  of  food,  1918C-895. 

Person  employed  in  connection  with  ware- 
house as  independent  contractor,  1918C— 
659. 


274:  ANN.  OAS  DIGEST  (1918C-1918E). 

WARRANTY.  WILLS. 


Warranty  of  title  or  quality  under  uniform 

sales  act,  1918D-400. 
See  also  Insubanoe. 


W^ASTE. 

Changing  character  of  land  as  waste,  1918D- 
543. 


WATERS  AND  WATERCOURSES. 

Conveyance    aa    including     prior    accretion, 

1918E-244. 
Power  of  United  States  to  condemn  land  for 

improvement  of  navigation,  1918E-47. 
Rule  for  apportionment  of  accretions  between 

riparian  proprietors,  1918E-998. 


W^ATERWORKS  AND   W^ATER  COM- 
PANIES. 

Person  contracting  to  dig  trenches  for  water 
mains  as  independent  contractor,  1918C- 
658. 

Power  of  United  States  to  condemn  land  for 
purposes  of  water  supply,  1918E-48. 

W^AYS. 

Opening  way  through  land  as  waste,  1918D- 
543. 


Construction:  bequest  to  class  as  including 
persons  dead  before  making  of  will, 
1918D-953. 

■ — ^meaning  of  "n«ces8ary"  as  used  in  will, 
1918I>-1162. 

— ^meaning  of  "pro  rate"  •  or  "pro  rata,"  as 
used  in  will,  19180-791. 

Equitable  election:  effect  of  widow's  renun- 
ciation of  will  on  rights  of  other  lega- 
tees or  devisees,  1918C-412. 

Probate  and  contest:  right  of  person  named 
as  executor  in  will  to  recover  from  es- 
tate money  expended  in  unsuccessful  at- 
tempt to  sustain  will,  1918D-166. 

— ^validity  and  enforceability  of  agreement 
by  parties  interested  to  dispense  with 
probate  of  will,   1918E-1218. 

Revocation:  admissibility  of  declarations  of 
testator  upon  issue  of  revocation  of  will 
which  cannot  be  found,  1918E-370. 

Validity  of  provisions:  validity  of  provision 
in  will  relating  to  survivorship  in  com- 
mon  disaster,   1918D-842. 

See  also  Advancement;  Annuities;  Pow« 
EBS;  Trusts  and  Trustees. 


WINDING  UP  CORPORATIONS. 

See  CofiPOBATioNS. 


WINNINGS. 

See  Gaming. 


WEAPONS. 

Civil  liability  of  sportsman  for  shooting  an- 
other while  hunting,  1918C-386. 


WIRES. 

See  Electbicitt. 


IVEARING  APPAREL. 

Meaning  of  "necessary"  wearing  apparel  as 
uschd  in  exemption  statute,  1918D-175. 


WITHDRAW^AL    FROM    SETTLE- 
MENT. 

See  Public  Lands. 


WEEDS. 

Permitting    growth     of    noxious    weed    as 
waste,  1918D-643. 


WITHDRAW^AL  OF  CANDIDACY. 

See  Elections. 


WEIGHTS  AND  MEASURES. 

Validity  of  legislation  for  prevention  of 
fraud  in  weights  and  measures,  1918D- 
156. 


WHOLLY  DUE. 

Legal  meaning  of  "wholly  due,"  1918E-792. 

WIDOW. 

See  Equitable  Emjctioit. 


IVITNESSES. 

Cross-examination  of  witness  as  waiver  of 
right  to  exclude  testimony  relating  to 
transaction   Avith   decedent,    1918D-202. 

Effect  of  divorce  on  competency  of  husband 
or  wife  as  witness,  1918E-193. 


W^OMAN    SUFFRAGE. 

See  Elections. 


CUMULATIVE  INDEX  TO  NOTES. 

WOOD  LANDS. 


275 


Cluuiging    arable    land    into    wood    land   M 

waste,   1918D-543. 
Changing  pasture  into  wood  land  as  waste, 

1918D-543. 
Changing  wood  land  into  pasture  as  waste, 

1918D-543. 


WORDS  AND  PHRASES. 

"About:"    meaning    of    "about"    when    used 

with  reference   to  quantity,  1918D-693. 
"And    due:"    legal    meaning    of    "and    due," 

1918E-785. 
"Balance   due:"    legal    meaning   of   "balance 

due,"  1918E-785. 
"Become    due:"    legal    meaning    of    "become 

due,"  1918E-786. 
"Child:"  term  "child"  or  "children"  in  stat- 
ute   as    including   grandchild  or  grand- 
children,  1918E-1004. 
"Claims  due:"  legal  meaning  of  "claims  due," 

1918E-787. 
"Contiguous:"  meaning  of  term  "contiguous," 

1918E-798. 
"Debt   due:"    legal   meaning  of   "debt  due," 

1918E-788. 
"Debt  due  in  same  right:"  legal  meaning  of 

"debt  due  in  same  right,"  1918E-789. 
"Due:"  legal  meaning  of  "due,"  1918E-766. 
"Due    and    owing:"    legal    meaning   of    "due 

and  owing,"  1918E-782. 
"Due  and  payable:"  legal  meaning  of  "due 

and  payable,"  1918E-784. 
"Due   date:"   legal   meaning  of   "due  date," 

1918E-785. 
"Due   in    full:"    legal    meaning    of   "due   In 

full,"  1918E-785. 
'Treight    due:"    legal    meaning    of    "freight 

due,"  1918E-789. 
"Grow  due:"  legal  meaning  of  "grow  due," 

1918E-789. 
"Independent  contractor:"  who   is   an   inde" 

pendent  contractor,  1918C-627. 
"Invoice  value:"  meaning  of  "invoice  value," 

"invoice  cost"  or  the  like,  1918E-541. 
"Judge"   as   including  justice  of  the   peace, 

1918D-990. 
"Justly  due:"  l^al  meaning  of  "justly  due," 

3918E-789. 
"Legally    due:"    legal    meaning    of    "legally 

due,"  1918E-789. 
"Machinery:"'      meaning      of      "machinery," 

1918E-202. 


"Manufacturing:"  what  constitutes  "manu- 
facturing" establishment  within  statute 
regulating  hours  of  labor,  1918D-685. 

"Money  due:"  legal  meaning  of  "money  due," 
1918E-790. 

"Necessarily  traveled"  meaning  of  "necessary 
travel"  or  "necessarily  traveled"  as 
used  with  respect  to  mileage  allowance, 
1918D-934. 

"Necessary:"  meaning  of  term  "necessary"  as 
applied  to  easement,  1918D-931. 

—meaning  of  term  "necessary"  as  used  in 
exemption  statute,   1918D-173. 

—meaning  of  term  "necessary"  as  used  in 
will,  1918D-1162. 

^Necessary  expense:"  meaning  of  term  "neces- 
sary expense,"  1918D-921. 

"Nothing  due:"  legal  meaning  of  "nothing 
due,"  1918E-791. 

"Pro  rata:"  legal  meaning  of  "pro  rat«"  or 
"pro  rata,"  1918C-791. 

"Remaining  due:"  legal  meaning  of  "re- 
maining due,"  1918E-791. 

"Right  of  way:"  wliat  is  included  within 
term  "right  of  way"  as  applied  to  rail- 
road, 1918D-1040. 

"Roadway:"  meaning  of  "roadway"  as  ap- 
plied to  railroad,   1918D-728. 

"Still  due:"  legal  meaning  of  "still  due," 
1918E-791.     • 

"Sum  due:"  legal  meaning  of  "sum  due," 
1918E-792. 

"Taxes  due:"  legal  meaning  of  "taxes  due," 
1918E-792. 

"Track:"  meaning  of  "track"  as  applied  to 
railroad,  1918E-233. 

"Village:"  meaning  of  "village,"  1918D-258. 

"Wholly  due:"  legal  meaning  of  "wholly 
due,"    1918E-792. 

See  also  Guabantt;  Illegal  Contbaots;  In- 

BUBANCE;    TAXATION,. 


WORKMEN'S  COMPENSATION  ACTS. 

Neglect  of  statutory  duty  by  employer  as 
permitting  action  by  employee  for  per- 
sonal injuries  notwithstanding  work- 
men's compensation  act,  1918D-334. 


X-RAYS. 

Bee  Physicians  and  SxTBOBOira. 


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